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Faculty  library 


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FOREWORD 

This  volume  is  an  exact  photo-reproduction  of  an  original  copy  of 

S.  M.  Harringfton's 
DELAWARE    REPORTS 

VOLUME  I 


As  a  copy  of  the  original  is  practically  unobtainable,  this  volume  is 
oflFered  to  enable  law  libraries  to  complete  their  collection  of  Delaware 
Reports. 

The  edition  has  a  limited  printing. 

Buffalo,  N.Y.  DENNIS  &  CO.,  INC. 

August,  1952 


V      «  ^  *\ 


EEPOETS 


CASES    ARGUED    AND    ADJUDGED 


IN  THE 


SUPERIOR  COURT 


COURT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE  OF  DELAWAEE 


From  the  Organization'  of  those  Courts  under  the  Amended 

Constitution,  with  References  to  Some 

OF  the  Earlier  Cases. 


PUBLISHED  AT  THE  REQUEST  OP  THE  GENERAL    ASSEMBLY. 


By  SAMUEL  M.  HARRINGTON, 

Onb  op  the  Judges  of  the  said  Courts. 


Stare  decisis.— liia.  Max. 


Vol.  I. 


WILMINGTON,  DEL.: 

MERCANTILE  PRINTING  CO.,.  Law  Book  Publishers. 

1901. 


1 


45 


\1        Ni 


TABLE  OF  CASES. 


A.  Page. 

Abbot's   use   v.    Stockley 134 

Adams'  admr.  v.  Burton,  shff.  . .  188 

Allen  &  Co.  v.  Babcock 348 

Adams  et  ux,  Cordry  v 439 

AUee,  Parson's  admr.  v 71 

Ashton,    Wagstaff    v 503 

B. 

Baily  -u.  Seal  232,  367 

Baily  v.  M'Dowell 346 

Baily  v.  Capelle    449 

Bank  v.   Cooper's  exr 10 

Bank  v.  Gilpin  et  al 561 

Bank  v.  Simmons   331 

Bank   i".  Houston    225 

Banner  qui  tam  v.  Gregg 523 

Bauduy  v.  Bradun   182 

Beeson's  exr.  v.  Beeson's  admr.  .  106 

Beeson's  admr.  ■y.  Beeson's  exr .  .  394 

Beeson  v.  Beeson's  admr 466 

Bennington   v.   Parkins'   admr .  . .  128 

Bird  r,  Stilley  et  al 339 

Bishop  V.  Wild's  admr 87 

Bonwell  v.  Dickson    105 

Booth's  exr.  v.  Stockton's  exr...  61 

Bradley's  exr.  v.  Read 33 

Brooks  r.  Morgan   123 

Broom's  lessee  v.  Thompson 343 

Budd  et  al.  v.  Busti  et  al 69 

Burton's  admr.  v.  Miller 7 

Babcock,  Allen  &  Co.  i' 348 

Bailey,  Hukill  v 448 

Bainton  et  al.,  Milner  v 144 

Bennington,  Parkins'  admr.  v.  . .  209 

Bank,  M'Dowell  v 27,  369 

Beckley,   State    v 142 

Bernard's  admx..  Tunnel  v.  .....  497 

Beeson's  admr.,  Beeson's  exr.  v.  .  106 

Beeson's  exr.,  Beeson's  admr.  v.  .  394 

Biddle,  Fiddeman  v 500 

Biddle,  Templeman    v 522 

Bishop,   Wild's  admr.  v 87 

Blackstock,  Cazier  v 362 

Bradun,   Bauduy    v 182 

Breen,   Sipple  v 16 

Brindley  et  al.,  Elliott  v 364 

Broom  et  al.,  Roberts  v 57 

Brown,  Bank  v. 330 

Bush,  Turnpike  Co.  v 44 

Busti  et  al.,  Budd  et  al.  v 69 

Burton,  shflF.,  Adams'  admr.  v.  . .  188 

Bull's  admr.,  Polk  v 43? 


^  Page. 

Cannon's  use  v.   Cannon 324 

Carlisle  et  al.  v.  Fleming  et  al .  . .  421 

Cazier  v.  Blackstock   362 

Chandler  v.  Ferris   454 

Clark  V.  Hill   335 

Cochran  v.  Evan's  admr 200 

Cooper  et  ux.  v.  Way 18 

Cordry  v.  Adams  et  ux 439 

Colesberry  v.  Stoops   448 

Coulter  V.  Layton  494 

Coleman  •v.  Waples    196 

Crawford  et  al.  v.  Short  et  al 355 

Crawford  &  Co.  v.  Slack 122 

Crawford's  lessee  v.  Green 464 

Crozier's    case    33 

Cannon,  Goslin  v 3 

Capelle,   Bailey  v 449 

Carr,  Richardson  v 142 

Cannon,    Morris   v 220 

Cannon's  admx..  State  v 324 

Carter's  exr..  State  v 325 

Ches.  &  Del.  Canal,  Randel  v.  151,  233 

Clark's  admr.,  Waples  v 135 

Cleaver,  Stewart  v 337 

Collins  et  al.,  Robinson  v 498 

Collins,    State   v 216 

Collins,  Emory  v 325 

Com.  Bank,  Hardcastle  v 374 

Cooler's  exr.,  Bank  v 10 

Countis,  Murphy  i; 143 

Crowell,  Randell  v 565 

Culver,  Prichard's  admr.  v 76 

D. 

Davis'  case   17 

Davis  V.  Denning  et  al 225 

Davis'  use  v.  Biddle 500 

Dick  V.  Doughten   388 

Dodd's  admr.  v.   Reybold 401 

Donnelly  v.  M'Grann  et  al 453 

Duncan  v.  Newlin   109 

Denning  et  al.,  Davis  v 225 

Derrickson,  Waples  v 134 

Dickson,  Bonwell  v 105 

Dodd's   admr.,  Reybold   v 401 

Doughten,  Dicks  i; 388 

Downey,   Kizer  v 530 

Duncan,   Newlin   t" 204 

Dutton,  Spencer   f 76 


TABLE  OF  CASES. 


E.  Page. 

Earl'a  use  v.  Millen 139 

Easton  v.  Jones   433 

Eaves'  admr.  v.  King 141 

Egbers  v.  Logan  342 

Elliot  17.  Brindley  et  al 364 

Emory  v.  Collings 325 

Erwin  t?.  Lamborn 125 

Eaves'  admr.,  Cochran  v 200 

Farmers'  Bank  v.  Brown 330 

Farmers'  Bank  v.  Massey 186 

Farmers'  6&nk  v.  Gilpin  et  al . . .  561 

Farmers'  Bank  i*.  Reynolds 513 

Farmers'  Bank  v.  Horiey  et  al. .  514 

Fergus'  lessee   i\  Robinson 476 

Ferguson's  lessee  v.  Hedges 524 

Femon  v.  Farmer's  admr 32 

Fiddeman,  use,  etc.,  v.  Biddle...  500 

Fooks  V.  Waples    131 

Ford's  lessee  v.  Hays  et  al 48 

Farmer's  admr.,  Femon  v 32 

Farmers'  Bank,  Johnson  v 117 

Ferris,  Chandler  v 454 

Fleming  et  al.,  Carlisle  v 421 

Flowers,  Ru8>>  v 475 

G. 

Gibbons  r.  Mason    452 

Goslin  V.  Cannon   3 

Green  v.  Lockwood's  admr 331 

Griffith  et  ux.  v.  Johnson's  admr.,  136 

Griffin  v.  Reece  et  ux 508 

Groves  v.  Hickman   33 

Grubb  V.  Grubb    516 

Guthrie  v.  Morrison   368 

Guthrie  v.  Hyatt   446 

Gilpin  et  al..  Farmers*  Bank  v. . .   561 

Gregg,  Banner  v 523 

Green,  Crawford's  lessee  v 464 

Green's  gam.,  Johnson  v 442 

Green's  srarn.,  Houston  v 442 

Griffin,  Ringold  v 224 

H. 

Hardcastle   v.  Com.  Bank 374 

Harris'  exr.  r.  Vickers 6 

Hartwell  v.  MacBeth 363 

H»wthome  v.  Maguire   530 

Hearn  v.  Hearn    498 

Herdman's  use  r.  Houston 230 

Houston  V.  Green's  gam 442 

Huggins  V.  M'Gregor  447 

Huey  V.  Hendrixen  et  al 145 

Humphries  r.  Webster  34 

Hunter  v.  Lank   10 

Hukill  V.  Bailev   448 

Hall,  Ray  i.  .  * 106 

Harper,    Shrowders   v 444 

Harman,  Waples'  lessee  v 223 

Hays  et  al.,  Ford's  lessee  v 48 


Page. 

Heather,   Scott  v 330 

Hedges,  Ferguson's  lessee  v 524 

Hedges,  M'Knight's  lessee  v 524 

Hendrixen,  Huey   t; 145 

Hickman,  Groves  v 33 

Hill,  Clark   v 335 

Horsey  et  al.,  Bank  v 514 

Houston,  Townsend  v 532 

Houston,  Bank  v 225 

Houston,  State  v 230 

Houston's  admr.,  M'Clay  v 529 

Hukill,  Wilson's  admr.  t; 347 

Hyatt,  Guthrie  v 446 

Hyndman,  Potter  v 123 

Hynson,  Woodlin  v 224 

J. 

Jacobs  V.  Walton  496 

Jaques  v.  Rice  33 

Jeyell's  use  v.  Porter   126 

Johnson  v.  Green's  garnishee. . . .  442 

Johnson  v.  Farmers'  Bank    117 

Jones   V.   Wootten 77 

Jaquett,  Tatlow  v 333 

Johnson's  admr.,  Griffith  v . .  136 

Jones,  Easton  v 433 

K. 

Killen's  use  v.  Carter  325 

Kizer  v.  Downey    530 

Kennedy,  M'Dermot  i' 143 

King,  Eaves'  admr.  v 141 

L. 

I^rabden's  exr.  v.  Morris 22 

LoUey  v.  Needham's  exr 86 

Lamborn,  Erwin  v 125 

Lank,  Hunter  v 10 

Layton,  Coulter  v 494 

Larkins'   exr.,   State  v. 120 

Lockwood's  admr..  Green  v 331 

Lcgan,  Simmons'  lessee  v 110 

Logan,  Egbers  v 342 

M. 

Maberrv  &  Co.  v.  Shisler 349 

M'Cauliey  v.  M'Caullev    137 

M'Call  r.  Reybold 148 

M'Clay  V.  Houston's  admr 529 

M'Dermott  v.  Kennedy    143 

M'Dawell  n.  Bank   27,  369 

M'Glensy  &  Co.  v.  M'l^ar 466 

M'Knight's  lessee  v.  Hedges....   524 

Martin's  lessee  v.  Roach   477 

Milner  v.  Bainton  &  Co 144 

Minus  V.  Stant  et  al 446 

Moon's  use  v.  Hall 106 

Morris  v.  Cannon 220 

Morris  v.   Turnpike   Co.. 366 

Murphy    v.   Countiss 143 

M'Beths,    Hartwell    v 363 


TABLE  OF  CASES. 


Til 


Page. 

M'Clay  et  al.  State  v 520 

M"Dowell,   Samuel's   exr.  v 108 

M'Dowell,   Bailey    V 346 

M'Gregor,   Huggins    v ^ 447 

M'Guire,  Hawthorne  v 630 

M'Grann  et  al.,  Donelly  v 453 

M'Lear,  M'Glensy  &  Co.  v 466 

Massey,   Bank   v 186 

Mason,  Gibbons  v 452 

May,  Cooper  et  ux.  V 18 

Miller  et  al.,  Burton's  admr  V.  . .  7 

Miller's  admr.,  Worknot   v 139 

Mitchell  &  Quinn,  Robinson  v.  . .  365 

Monges,  Stevens  v 127 

Moore,   Rice  v 452 

Morgan,   Brooks   v 123 

Motrison,   Guthrie   V 368 

N. 

Newbold  t>.  Polk  335 

Newbold  V.  Ridgway  et  al 55 

Newbold  et  al.  v.  Wilkins 43 

Newlin  v.  Duncan    204 

Needham's  exr,,   Lolly   v 86 

Newbold,  Ridgway  et  al.  v 385 

Newlln,  Duncan  v 109 

Norrii,  Lambden's  exr.  v 22 

m  ^' 

^p    Parkins'  admx.  v.  Bennington . . .  209 

Parson's  admr.  v.  Alee   7 

Polk,  assignee,  v.  Bull's  admr...  433 

I    Porter  v.  Sawyer 517 

Potter  V.  Hyndman   123 

Prichard's  admr.   ii.  Culver 76 

Paine  et  al.,  Vannini  et  al.  v 65 

Parkins'  admx.,  Bennington  v. . .  128 

'          Polk,    Newbold  v 335 

Porter,    State    v 126 

Rambo  v.  Turnpike  Co 116 

Randel  v.  Canal  Co 151,  233 

Randel  v.  Wright  34 

Randel  v.   Shoemaker    565 

Ray,  use  Moon  v   Hall 106 

Reading's  heirs  v.  The  State....  190 

Reed   v.  Todd    138 

Redden  v.  Stewart  et  al 495 

Reybold  t'.   Dodd's  admr 401 

Rice  V.  Moore    452 

Richardson  v.  Carr    142 

Ridgway  et  al.  r.  Newbold 385 

Ringgold  V.  Griffin   224 

Rhodes  v.  Silvers   127 

Roberta  et  al.  v.  Broom  et  al . . . .  57 

Robinson  v.  Mitchell  &  Co 365 

Robinson  v.  Collins  et  al 498 

Rust  V.  Flowers    475 

Reece  et  ux..  Griffin  V 508 

Reading,    State   t; 23 

Read,  Bradley's  exr.  v 33 

Reynolds,    Bank   t; 513 


Page. 

Reybold,   M'Call  v: 146 

Reybold,  Dodd's  admr.  v 401 

Rice,   Jaques   v 33 

Richards'    admr.,   Wright    v 323 

Richardson,  Washington's  exr.  v.,  338 

Ridgeway  et  al.,  Newbold  v 55 

Roach,   Martin's  lessee   i;. . .   476,  548 

Robinson,  Fergus'  lessee  v 476 

S. 

Samuiel's  exr.  v.  M'Dowell 108 

Scott  V.  Heather  330 

Seal's  Case   347 

Simmons'  lessee  v.  Logan  ......  110 

Shrowders  v.  Harper 444 

Sipple  v.  Breen   I6 

Sipple  V.  Scotten 107 

Spencer  v.  Dutton   75 

State,   use  Abbott   v.   Stockley's 

admr 134 

State,    use    Reading's    admr.    v. 

Reading 23 

State,  use  Thompson  v.  M'Clay . .  520 

State,  use  Jewell  v.  Porter 126 

State,  use  St.  Peter's  Church  v. 

Larkin's  exr 120 

State,  use  Godwin  1).  Collins  ....  216 
State,    use    Cannon    v.    Cannon's 

admx 324 

State,  use  Herdman  v.  Houston,  230 

State,  use  Killen  v.  Carter's  exr.,  325 

State,  use  Vickery  v.  Vickery..  193 

State,  use  Woods  v.  Beekley....  142 

State,  use  Graham  v.  Wild   499 

Stevens   t'.    Monges    127 

Stewart  v.   Cleaver    337 

Sawver,  Porter  !?. , 517 

Scotten.   Sipple  v 107 

Senl.    Bailv    v 232.  367 

Shisler.  Maberry  A  Co.  v 349 

Shoemaker,   Randel   r 565 

Short  et  al.,  Crawford  v 356 

Silvers,  Rhodes  v 127 

Simmons.    Bank   v 331 

Slack.  Crawford  &  Co.  V 122 

Slack,   Whiteman  r 144 

State.  Reading's  heirs  v 190 

Slant  et  al.,  Minus  v 445 

Stewart  et  al..   Redden  V 495 

Stilley  et  al..  Bird  v 339 

Stockley's  admr..  State  v 134 

Stoops,  Colesberry  v 448 

Stockton's  exr..  Booth's  exr.  v. .  51 

T. 

Tatlow  V.  Jaquett  338 

Templeman  v.  Biddle    622 

Townsend  v.  Houston  532 

Tunnel's  use  v.  Bernard's  admr. .  497 

Thompson,  Broom's  lessee  v. . . .  343 

Thompson,  Vandyke's  lessee  v. .  109 

Todd,   Reed   v 138 


Till 


TABLE  OF  CASES. 


V.  Page. 

Vandyke's  lessee   r.  Thompson.  .  109 

Vannini  et  al.  v.  Paine  et  al 66 

Vickers,   Harris's  exr.   v 6 

Vickery,   State  v 193 

W. 

Waples  V.  Derrickson  134 

Waples   V.   Clarke's  admr 135 

Waples  V.  Waples    474 

Waples's  admx.  v.  Waples  et  al.,  392 

Waples's  lessee  v.  Harman 223 

Waggstaff  V.  Ashton  503 

Washington's  exr.  v.  Richardson,  338 

Whiteman  V.  Slack   144 

Wild's  admr.  v.  Bishop   87 

Wil.&  Phil.  Turnpike  Co.  i?.  Bush,  44 

Wilson's  admr.  r.  Hukill  347 


Page. 

Woodlin  et  al.  v.  Hynson  224 

Wood's  use  V.  Beckley   142 

Worknot  v.   Millen 139 

Wright  V.  Richardson's  admr . . .  323 

Walton,  Jacobs  v 496 

Waples,   Fooks  v 131 

Waples,  Coleman  v 196 

Webster,  Humphries  v 34 

Wild,   State   v..'. 499 

Wild's  admr.,  Bishop  v 87 

Wil.  &  Phil.  Turnpike  Co.,  Rambo 

V 116 

Wil.    &    Kennet    Turnpike    Co., 

Morrison  v 366 

Wilkins,  Newbold  &  Co.  « 43 

Wootten,   Jones  v 77 

Wright.    Randel    V 34 


REPORTS. 


The  A?.iended  Coxstitution^  so  far  as  it  relates  to  the  Judicial 
Department,  went  into  operation  on  the  third  Tuesday  of  January, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-two; 
and  the  courts  were  filled  up  by  the  appointment  of 

Kensey  Johns,  Jk.,  of  Newcastle  county.  Chancellor. 

Thomas  Clayton,  of  Newcastle  county.  Chief  Justice. 

Jaimes  E.  Black,  of  Newcastle  county, 

Peter  EoBiNSON,  of  Sussex  county,  \  Associates. 

Samuel  M.  Harrington,  of  Kent  county. 


Egbert  Frame,  Attorney  General. 


The  SifPERiOR  Court  held  its  first  session  at  Georgetown,  in  Sus- 
sex county,  on  Monday  the  ninth  of  April,  1832, 


SUPERIOR    COURT. 

SPRING  SESSIONS, 

1832. 


'^ 


JOHN  GOSLIN  vs.  ISAAC  CANNON. 

A  deposition  to  a  leading  interrogatory  will  not  be  suppressed  at  the  trial  if 
full  opportunity  has  been  given  to  object  to  it  before. 

Words  spoken  to  a  magistrate,  though  slanderous  and  malicious,  are  not 
actionable:  but,  if  the  slander  be  proved  aliunde,  they  may  be  given  in  evi- 
dence to  aggravate  the  damages. 

Capias  case.     Plea,  Not  guilty.     Special  Jury. 

This  was  an  action  on  the  case  for  slanderous  words  spoken  by 
deft,  of  the  plff.,  imputing  to  him  the  crime  of  burning  a  house  and 
barn.  The  declaration  contained  twenty-five  counts  laying  the  words 
spoken  in  various  forms;  one  of  them  thus: — 

After  the  inducement  and  colloquium  — "  I  would  give  $500,  if 
J  could  believe  that  John  Goslin  did  not  do  it,"  meaning,  &c. 

Frame  for  pljff.  offered  in  evidence  the  deposition  of  William  To- 
bin,  taken  under  a  commission  out  of  this  court  to  a  commissioner  in 
Baltimore. 

It  was  objected  to  by  Mr.  Bayard  for  deft.:  1st,  on  the  ground 
of  surprise,  there  being  no  entry  on  the  docket  of  the  return  of  this 
deposition;  and  2ndly,  because  the  interrogatories  were  leading. 
The  second  interrogatory,  particularly  objected  to,  was  as  follows: 
"  Second. — Had  Isaac  Cannon  the  brother  of  Jacob  Cannon  any 
conversation  with  you,  or  any  other  person  or  persons  in  your  pre- 
sence, relative  to  a  house  and  barn  which  had  been  burned  down? 
If  yea,  state  the  time  of  that  conversation,  or  whether  it  was  before 

the  day  of  1829;  and  whether  in  that  conversation 

the  said  Isaac  Cannon  stated  that  he  did  believe  that  John  Goslin  set 
fire  to  said  houses  or  one  of  them,  and  which ;  whether  he  stated  that 
John  Goslin  was  the  cause  of  said  houses  being  burned  down;  whether 
he  stated  that  he  would  give  $500  if  he  could  think  otherwise,  and 
every  other  matter  or  thing  that  you  heard  said  Isaac  Cannon  say 
relative  to  the  burning  of  said  houses,  and  as  to  the  said  John  Goslin's 
being  by  Him  charged  or  accused  therewith  according  to  the  best  of 
your  knowledge,  remembrance  and  belief,  fully  and  at  large." 

Frame  for  plff.  The  deposition  was  regularly  returned  and  filed 
more  than  one  year  ago,  and  published.  So  far  as  the  party  could 
possibly  get  it  filed,  it  was  filed.     The  envelope  is  marked  "  filed  " 


4  GosLiN  vs.  Cannon. 

b)'  the  Prothonotary,  though  the  entry  of  such  filing  is  not  made 
upon  the  record.  The  docket  entry  is  not  the  filing,  it  is  a  mere 
memorandum  of  the  filing,  which  is  the  placing  the  paper  on  the 
iiles.  As  to  the  other  point,  the  interrogatory  is  not  a  leading  one; 
and,  if  it  were,  the  objection  is  both  too  late  and  informally  taken. 
It  ought  to  have  been  made  in  writing  at  the  earliest  possible  stage  of 
the  cause;  if  allowed  now,  it  will  operate  as  a  trap.  The  jury  are 
sworn,  the  trial  progressing,  and  there  is  now  no  possibility  of  pro- 
curing another  deposition,  which  might  have  been  done  if  this  had 
been  objected  to  in  due  time.  The  other  side  had  full  notice  of  the 
time  of  filing  these  interrogatories  and  opportunity  to  file  cross  inter- 
rogatories.    This  is  admitted. 

Rogers  for  deft.  I  had  no  knowledge  of  this  deposition  until  this. 
morning.  We  could  have  no  notice  of  the  return  of  the  commission 
but  from  the  record,  and  there  is  no  entry  of  it  on  the  record.  "We 
aie  therefore  not  too  late.  But,  if  we  had  notice,  this  is  the  regular 
tnne  of  objecting  to  the  testimony.  An  objection  to  testimony  was 
never  made  in  any  of  our  courts  of  law  at  any  other  time  or  in  any 
other  manner.  The  practice  is  different  in  Chancery,  where,  upon 
objection  made  to  leading  interrogatories,  the  matter  is  referred  to  a 
master  for  his  report.  Kefers  to  a  case  in  the  Com.  Pleas  where  a 
deposition  was  objected  to  at  the  trial  becaiise'  the  commission  was 
directed  to  Joseph  Douglass  and  returned  by  Joseph  S.  Douglass, 
and  the  deposition  was  rejected.  Depositions  will  be  suppressed  if 
too  particular  or  leading;  so  where  the  answer  yes  or  no  would  be 
conclusive.      1  Har.  Chy.  320 ;  i.  titarkie  Ev.  124. 

Per  C.  J.  Clayton. —  That  remark  of  Lord  Ellenborough  is  not 
always  true.      Vide  Nicholls  vs.  Dowding,  1  Stark.  N.  P.  C.  81. 

Frame  asked  leave  to  reply  to  the  authorities  cited. 

The  objection  is  not  to  a  defective  deposition  as  of  heresay  matters, 
nor  to  a  commission  defectively  executed  or  returned,  as  where  it  is 
addressed  to  one  person  and  returned  by  another;  but  the  objection 
is  to  the  interrogatory  alone,  and  seeks  to  exclude  a  competent  depo- 
sition properly  taken  and  returned,  on  thfe  ground  of  an  irregular  in- 
terrogatory. Now  this  interrogatory  was  filed,  and  notice  of  it  given 
to  the  other  side  a  year  ago.  Even  in  Chancery,  if  you  omit  to  ob- 
ject to  interrogatories  in  due  time,  you  are  precluded  at  the  trial. 
Every  good  interrogatory  must  direct  the  mind  of  the  witness  to  the 
subject  matter  of  inquiry,  and  it  is  difficult  to  say  precisely,  what  is 
a  leading  question.    1  Stark.  124.     Equity  Draftsman. 

Bayard. —  You  may  direct  a  witness'  mind  to  the  point,  but  not 
ask  particulars,  or  suggest  to  him  an  answer.  This  is  undoubtedly 
a  leading  interrogatory.  I  had  no  knowledge  of  the  deposition  until 
this  morning.  It  would  be  a  good  practice  to  require  exceptions  to 
bo  filed  to  interrogatories  before  commission  issued,  but  there  is  no 
stich  practice.  In  our  practice,  a  party  frames  his  interrogatory  at 
hit  peril  just  as  he  puts  a  question  to  a  witness  at  the  trial. 

By  the  Court. —  We  are  of  opinion  that  this  deposition  ought  not 
to  be  suppressed.  We  incline  to  think  the  interrogatory  is  a  leading 
one,  but  it  is  a  very  different  question  whether  the  deposition  should 
now  be  suppressed  on  this  account. 


GosLix  vs.  Cannon.  6 

This  deposition  has  been  returned  for  twelve  months.  The  party 
has  submitted  to  it,  taken  no  exceptions,  but  permits  the  jury  to  be 
drawn.  If  this  course  prevail,  there  is  an  end  of  reading  depositions 
before  a  jury.  The  party  might  protest  against  an  interrogatory  and 
then  the  other  side  would  take  it  at  his  peril.  The  question  must  be 
objected  to  at  the  time;  therefore,  if  in  taking  the  deposition  of  a 
witness  a  leading  question  be  put  and  answered,  it  cannot  afterwards 
be  excepted  to  at  the  trial.  Sheeler  vs.  Speer,  3  Binn.  130.  Where 
depositions  have  been  taken  in  an  ancient  suit  to  perpetuate  testimo- 
ny, it  cannot  be  objected  that  the  answers  were  given  to  leading  in- 
terrogatories, since  the  party  to  the  proceedings  might  have  objected 
to  them,  and  have  had  them  expunged,  instead  of  which  he  allowed 
publication  to  pass,  and  the  evidence  to  be  exemplified.  1  Stark. 
Ev.  270. 

The  deposition  was  admitted. 

In  the  course  of  the  examination  of  witnesses,  the  plff.  called  Dr. 
John  Gibbons,  a  justice  of  the  peace,  to  prove  certain  declarations 
made  to  him  by  the  deft,  on  the  occasion  of  swearing  articles  of  the 
peace  against  the  plff.  It  was  objected  that  this  testimony  if  at  all 
admissible,  was  only  evidence  to  show  express  malice,  and  could  not 
be  the  foundation  of  an  action  it  being  a  privileged  communication. 
The  direction  of  the  Court  was  asked  on  this  point.  1  Vin.  Ah.  390 ; 
4  Co.  R.  U;  3  Esp.  R.  33;  o  Esp.  R.  109;  4  Yeates,  507;  5  Johns, 
509. 

The  case  was  very  fully  argued  by  Layton  and  Frame  for  the  plff., 
and  Cullen,  Rogers  and  Bayard,  for  the  deft,  and 

The  Court,  by  the  Ch.  Jus.,  charged  the  jury  as  foUovrs: 

Clayton,  C.  J. — "  The  words  declared  upon  in  this  ease  impute  a 
crime  to  the  plff.,  and  are  in  themselves  actionable.  The  law  in 
such  case  presumes  malice,  and  it  is  not  necessary  to  prove  express 
malice  to  entitle  the  plff.  to  a  verdict,  for  the  law  implies  that  he  has 
received  some  damage. 

As  the  law  is  now  settled,  it  may  be  laid  down  as  a  general  rule, 
that  wherever  words  are  calculated  to  impress  upon  the  minds  of  the 
hearers  a  suspicion  of  the  plft''s.  having  committed  a  criminal  act, 
such  an  inference  may  and  ought  to  be  drawn  whatever  form  of  ex- 
pression may  have  been  adopted,  whether  the  words  spoken  impute 
such  criminal  act  directly  or  indirectly.  And  it  is  not  necessary  to 
prove  the  precise  words  alledged  in  the  declaration;  but  it  is  suffi- 
cient to  prove  the  substance  of  them.  The  substance  of  the  slander 
imputed  here  is,  that  the  plff.  burned  down  the  house  and  bam  in 
question,  or  caused  it  to  be  done.  The  words  must  be  spoken  in  the 
same  manner;  for  instance,  interrogative  words  proved,  will  not 
support  words  alledged  affirmatively;  or  words  alledged  to  have  been 
spoken  to  the  plff.  are  not  supported  by  words  proved  to  have  been 
spoken  to  a  third  person  of  the  plff.  It  is  objected  to  the  evidence 
of  Mr.  Wright,  that  it  does  not  certainly  appear  that  the  conversa- 
tion detailed  by  him,  took  place  before  the  commencement  of  the 
action.  In  order  to  prove  the  slander,  it  ought  to  appear  that  the 
words  were  spoken  before  the  action  brought.  This  is  a  matter  of 
which  you  are  to  judge  from  the  testimony  of  this  witness.    We  may 


(>  Harris'  Ex'r.  vs.  Vickers. 

be  allowed  to  say,  if  the  words  spoken  to  Mr.  Wright  were  spoken 
before  the  action  brought,  they  in  substance  do  support  the  allegation 
in  some  of  the  counts  of  the  declaration.  If  they  were  not  spoken 
before  the  action  brought,  then  they  can  be  only  used  in  proof  of 
express  malice,  and  to  aggravate  the  damages  on  the  ground,  that 
e\ery  repetition  of  a  slander  is  evidence  of  malice,  and  may  be  used 
to  aggravate  damages. 

Words  spoken  in  the  course  of  a  judicial  trial,  or  in  a  legal  pro- 
ceeding before  a  justice  of  the  peace,  either  in  a  civil  or  criminal 
cfise,  are  not  in  themselves  actionable;  and,  therefore,  the  only  use 
that  can  be  made  of  the  testimony  of  Dr.  Gibbons,  will  be  to  increase 
the  damages,  in  case  you  should  be  of  opinion  that  the  slander  has 
been  proved  by  any  other  witness.  Even  if  the  deft,  instituted  this 
proceeding  before  the  justice  from  the  most  malicious  motives,  it 
would  not  itself  be  the  foundation  of  an  action  of  slander;  but,  if  the 
slander  is  proved  by  other  testimony,  then  what  he  said  to  Dr.  Gib- 
bons, if  you  believe  he  was  actuated  by  malice  or  a  design  to  injure 
the  plff.  may  be  used  in  this  action  to  show  the  design  and  intention 
of  the  words  spoken  to  other  witnesses. 

You  alone  are  to  judge  of  the  credit  to  be  attached  to  the  witnesses. 
Tf  you  give  credit  to  Jacob  Wright  or  William  Tobin,  the  slanderous 
words  imputed  to  the  deft,  or  those  in  some  of  the  counts  in  the  dec- 
laration have  been  proved;  and,  consequently,  the  plff.  is  entitled  to 
your  verdict  for  damages. '  What  those  damages  ought  to  be  it  is  not 
for  us  to  say.  The  law  has  made  you  exclusively  the  judges;  and 
you,  exercising  a  sound  discretion,  are  to  say  what  redress  the  plff. 
ought  to  receive  for  the  wrong  which  has  been  done  him.  We  have 
already  told  you  that  the  words  imputed  to  the  deft,  are  in  them- 
selves actionablo;  that  wherever  one  man  uses  towards  his  neighbour 
such  words  as  these,  the  law  implies  malice,  and  it  presumes  that  the 
party  thus  slandered  is  injured,  and  is  entitled  to  damages.  If,  in 
addition  to  the  speaking  of.  the  words,  the  deft,  be  actuated  by  ex- 
press  malice,  then  you  may  give  exemplary  or  vindictive  damages. 
If  Cannon  uttered  these  words  designedly  to  prejudice  or  injure  the 
plff.,  that  is  what  the  law  calls  express  malice.  You  will  therefore 
in  considering  all  the  testimony  in  this  case,  ascertain  whether  the 
deft,  did  design  in  uttering  the  words  to  injure  the  plff. ;  and,  if  he 
did,  you  will  be  warranted  in  giving  vindictive  damages.  What 
shall  be  the  amoimt  of  the  damages  you  are  to  judge  from  all  the  evi- 
dence." 

The  jury  gave  a  verdict  for  the  plff.     Damages  $3,003. 


JAMES  HAKRIS  Executor  of  BENTOX  HARRIS  vs.  NATHAN 

VICKERS. 

Indebitatus  assumpsit  will  not  lie  by  the  administrator  of  tenant  for  life  for 
an  apportionment  of  the  rent.     Plff.  must  declare  specially. 

Capias  case  for  use  and  occupation.    Plea  non  assumpsit.    Issue. 
Layton  for  plff.  exhibited  the  letters  testamentary   and  proved 


Burton's  Adm'r.  vs.  Derrickson's  Adm'e.  7 

the  leasing  by  testator  to  deft,  at  $100  per  yearj  from  January  to  Jan- 
nary.    B.  Harris  died  in  Jnne  1830. 

He  here  rested,  when 

Cullen  for  deft,  moved  a  nonsuit.  Rent  follows  the  reversion. 
If  lessee  die  before  rent  due,  the  rent  goes  to  the  heir  with  the  in- 
heritance. Toller  Ex.  177.  The  proof  shows  that  Benton  Harris 
was  the  owner  of  this  property;  on  his  death  it  descended  to  the 
heir ;  the  heir,  therefore,  and  not  the  ex'r.,  is  entitled  to  the.  rent. 
The  action  is  assumpsit  for  use  and  occupation,  to  recover  a  reason- 
able sum  for  the  occupation  of  the  house  of  plff.  But  when  the  rent 
fell  due,  the  house  belonged  to  the  heir  of  Benton  Harris,  and  not 
to  plff.  his  personal  representative. 

Layton.  Benton  Harris  was  tenant  for  life,  and  the  suit  is  to  re- 
cover that  portion  of  the  rent  which  fell  due  in  his  life  time.  We 
go  for  an  apportionment. 

By  the  Court.  Clayton,  C,  J. —  If  Benton  Harris  were  tenant 
for  life,  his  ex'r.  could  not  maintain  a  general  indebitatus  assumpsit 
for  an  apportionment.  He  must  count  in  a  special  action  on  the  case 
under  the  act  of  assembly.  It  was  so  decided  in  the  case  of  Joseph 
Parsons,  adm'r.  vs.  Allee,  in  Kent,  at  the  Nov.  Term,  1831.    (a). 

On  the  other  point,  we  are  of  opinion  that  an  ex'r.  cannot  recover 
accruing  rents  after  the  death  of  the  testator;  and,  therefore,  there 
must  be  a 

Judgment  of  nonsuit. 


EBE  WALTEE,  Adm'r.  of  PEMBERTON  BURTO^^T  vs.  JAMES 
F.  MILLER  and  NANCY  DERRICKSON. 

Trover  will  lie  against  an  administrator  personally  for  a  conversion  by  him, 
though  the  property  came  to  him  with  the  estate  of  his  intestate. 

Capias  Trover.    Pleas,  Not  guilty,  and  Act  of  limitations.    Issues. 
This  was  an  action  of  trover  brought  for  four  negro  slaves.    The 

(a)  "  Joseph  Parsons,  being  tenant  for  life,  in  his  lifetime,  let  to 
Al)raham  Allee  a  tract  of  land  by  parol,  from  year  to  year,  rendering 
rent  one-third  of  the  corn,  and  two-fifths  of  the  wheat.  The  letting 
Avas  from  the  1st  of  March.  Parsons  died  on  the  20th  of  October.  To 
recover  under  the  Stat.  11  Geo.  2  Ch.  19.,  a  proportion  of  the  rent  the 
adm'r.  after  the  expiration  of  the  year,  brought  liis  action,  and  filed  his 
narr  in  general  indebitatus  assumpsit  alledging  that  Allee  was  indebted 
to  Parsons  in  his  lifetime  for  the  use  and  occupation  of  the  premises 
for  a  long  time  then  elapsed,  in  consideration  whereof,  he  promised  to 
pay  the  said  Parsons  in  his  lifetime,  &c.  It  was  objected  that  general 
indebitatus  assumpsit  will  not  lie.  Second,  that  it  should  have  been  al- 
ledged  that  deft,  being  liable  to  the  ex'r.,  undertook  and  promised  to 
pay  him  as  ex'r.  Accruing  rent  being  neither  dehitum,  nor  solvendum, 
a  release  of  all  actions  does  not  release  such  rent.  Litt.  Sect.  513 ;  Co. 
Lift.  292-6.  There  being  no  debt  or  duty  at  the  death  of  Parsons,  it 
would  seem  that  in  an  action  brought  by  his  adm'r.  after  liis  death  the 
declaration  ought  to  have  stated  the  facts  specially,  to  wit :  the  use  and 


8  Burton'-s  Adm'r.  vs.  Dereickson's  Adm'r. 

first  count  laid  the  property  in  P.  Burton,  and  the  conversion  in  his 
life  time.  The  second  count  laid  the  proi)erty  in  Burton,  and  the 
conversion  by  defts.  since  his  death;  and  the  third  count  laid  the 
property  in  the  adm'r.  Walter,  and  the  conversion  since  the  death 
of  Burton. 

The  proof  established  that  Pemberton  Burton  married  the  daughter 
of  Capt.  Wm.  Derrickson,  who  gave  these  negroes  to  the  wife  of 
Burton.  The  negroes  went  into  the  possession  of  Burton  and  re- 
mained in  his  possession  after  the  death  of  his  wife  and  during  all 
his  life.  After  his  death,  they  were  taken  back  by  Capt.  Derrick- 
son.  Defts.  are  his  adra'rs.  and  have  refused  on  the  application  of 
plff.  to  give  them  up;  but  have  sold  them  as  a  part  of  the  estate  of 
Derrickson. 

On  this  evidence,  Cullen  for  defts.  moved  for  a  nonsuit.  The 
declaration  in  all  the  counts  states  the  conversion  by  defts.  The 
])roof  establishes  a  conversion  by  Capt.  Derrickson  in  his  lifetime. 
Can  the  action  be  sustained  ?  It  is  a  tort  —  dies  with  the  wrong-doer. 
The  defts.  found  the  property  in  the  possession  of  their  intestate, 
and  appraised  it  as  such.  Can  they  be  made  liable  as  wrong-doers 
for  this?  The  plff.  has  his  remedy  in  another  form  of  action  for 
money  had  and  received,  to  recover  the  value.  Trover  does  not 
lie  against  an  ex'r.  for  a  conversion  in  the  testator's  lifetime.  1 
Cowp.  371. 

We  admit  that  the  cause  of  action  survives  under  our  act  of  As- 
sembly, but  the  conversion  is  here  charged  upon  the  defts.  and  not 
a  conversion  by  the  testator.  The  plffs.  might  bring  an  action  for 
the  conversion  by  the  intestate,  and  a  recovery  here  could  not  be  a 
bar  to  that  action.    Saund.  Ev.  886,  855. 

Frame  for  plff.  We  have  not  charged  a  trover  and  conversion  by 
Derrickson,  and  we  did  not  mean  to  do  it.  Every  man  is  answer- 
able for  his  own  torts,  and  we  mean  to  make  these  defts.  answerable 
for  their  tort.  We  care  not  whether  they  be  adm'rs.  or  not,  they 
are  wrong-doers,  and  we  hold  them  answerable  for  the  tort  indi- 
vidually. We  do  not  charge  them  as  adm'rs.,  but  personally;  and 
the  fact  of  their  being  the  adm'rs.  of  a  man  who  has  committed  a 
tort,  shall  not  excuse  their  own  tort.  The  case  in  Cowper  is  very 
different.  The  question  there,  was  whether  the  adm'r.  could  be 
held  answerable  for  the  torts  of  his  intestate,  and  we  recognize  the 
law  of  that  case,  at  least  until  our  act  af  Assembly  altered  it,  and 
prevented  the  abatement  of  the  action.  But  there  is  in  this  case, 
not  only  a  constructive,  but  an  actual  conversion.  It  is  the  law  that 
if  a  person  gets  possession  of  the  property  of  another,  and  uses  it  riot 
only  as  his  own,  but  as  the  propertv  of  another,  it  is  a  conversion.  2 
iSaiind.  PI  and  Ev.  881. 

occupation  by  permission  of  Parsons  in  his  life  time;  the  death  of 
Parsons ;  the  legal  liability  of  the  tenant  to  pay  to  the  adm'r.,  and  his 
undertaking  to  pay. 

(See  form  of  declaration  for  ex'rs.  Rent  due  from  deft.  25th  March, 
1789,  to  2oth  June,  1789.  The  testator  died  in  the  middle  of  the  quar- 
ter. In  a  suit  bv  ex'r.  of  a  termor  for  rent  which  became  due  after  the 
death  of  the  testator,  &c."    Impeys.  Plead.  360 ;  1  Chitty  PI.  11,  38-9.) 


Burton's  Adm'r.  vs.  Derbickson's  Adm'e.  9 

Rogers  for  defts.  in  reply.  The  question  is,  whether  an  action  can 
be  brought  against  an  adniT.  for  a  conversion  in  the  lifetime  of  his 
intestate.  Never  was  there  such  an  action  sustained.  How  came  it 
to  be  decided  in  Cowper,  that  an  action  would  not  lie  for  the  tort  of 
the  intestate,  if  a  suit  could  be  brought  against  the  adm'r.  so  as  to 
charge  him  personally?  The  claiin  is  essentially  against  tlie  estate 
of  Derrickson.  There  can  ])e  but  one  conversion  of  the  property. 
Xo  suit  can  be  brought  to  charge  a  man  personally,  where  the  prop- 
erty comes  to  him  as  an  adm'r.;  otherwise,  the  case  in  Cowper 
could  not  have  arisen.  How  is  an  adm'r.  to  be  protected?  He  is 
bound  to  appraise  all  the  estate  of  his  intestate,  and  a  recovery 
against  him  personally,  would  not  relieve  him  from  his  liability  to 
the  estate.  And  suppose  a  recovery  in  such  a  suit ;  it  vests  the  prop- 
erty in  them  individually.  The  action  proceeds  on  the  ground  of 
an  individual  claim  of  property  in  their  own  riglit,  which  is  not  so. 
It  would  change  the  whole  course  of  the  law  in  relation  to  the  admin- 
istration of  estates.  Under  our  act  of  Assembly,  the  remedy  was 
a  plain  one;  an  action  against  the  adni'rs.  for  a  conversion  by  their 
intestate.  This  could  not  be  done  at  common  law,  according  to  the 
case  in  Cowper;  but  it  may  under  our  act  of  Assembly.  The  record 
of  a  recovery  here,  could  afford  no  evidence  to  discharge  the  adm'rs. 
of  their  liability  to  the  estate,  nor  would  it  prevent  another  recovery 
for  a  conversion  by  the  intestate. 

By  the  Court. —  The  question  is  a  very  plain  one :  whether  a 
man,  being  an  adm'r.,  getting  possession  of  the  property  of  another, 
and  refusing  to  give  it  up,  can  be  sued  for  this  individually.  There 
Tnay  be  more  than  one  conversion.  Before  our  act  of  Assembly  you 
could  not  sue  the  adm'r.  for  a  conversion  by  the  intestate;  and,  if 
such  an  action  as  this  would  not  lie,  the  party  would  have  been  reme- 
diless. At  all  times  a  conversion  by  the  adm'r.  was  ground  for 
an  action  against  him.  It  is  probable,  that  in  the  case  in  Cowper, 
the  desire  was  to  come  at  the  intestate's  estate;  perhaps  the  adm'r. 
was  not  solvent.  Wherever  a  man  finds  his  property  in  th?  hands 
of  another,  who  refuses  to  give  it  up,  he  may  sue  him  in  this  form 
of  action.  Whether  the  deft,  claims  the  property  as  his  own  or  as 
another's,  it  is  a  conversion.  Saund.  PI.  and  Ev.  475.  If  Der- 
rickson had  changed  the  property  into  money,  an  action  for  money 
Tiad  and  received  would  lie.  A  recovery  here,  would  prevent  an- 
other recovery  against  Derrickson  for  a  conversion  in  his  lifetime,  for 
it  could  be  pleaded  to  such  an  action;  and  as  to  the  r?lief  of  the 
adm'rs.  on  a  recovery  in  this  action,  it  would  only  be  necessarv  to 
show  the  Register  that  the  property  had  been  recovered,  and  he 
ivould  credit  them  with  it.  The  conversion  of  property  by  an  in- 
testate in  his  lifetime,  might  exhaust  it;  hence  th?  necessitv  of 
coming  at  his  estate  after  his  death,  which  occasioned  the  struggle 
to  get  such  an  action  allowed,  which  was  refused  by  the  case  in 
Cowper.  The  property  co7ues  to  deft's.  hands  in  specie,  and  they 
refuse  to  give  it  up ;  they  claim  it  in  right  of  another,  but  this  makes 
them  guilty  of  a  conversion  individually,  as  the  property  is  in  specie 
in  their  hands.  There  is  no  express  proof  of  a  conversion  by  Capt. 
Derrickson.     The  proof  is,  that  the  negroes  went  into  his  possession 


10  Bank  of  W.  &  Brandywine  vs.  Cooper's  Adm'e. 

after  the  death  of  Mr.  Burton ;  no  demand  is  proved,  and  for  aught 
appearing,  he  may  have  been  in  the  possession  b}'  permission  of  Bur- 
ton's adm'r. 

The  nonsuit  was  refused,  and  eventually  the  plff.  obtained  a  ver- 
dict and  judgment  for  $175  damages. 

Frame,  Attorney  General,  for  plff.;  Cullen  and  Rogers  for  defts. 


ROBERT  HUNTER  vs.  THOMAS  LANK. 

Tn  a  mixed  possession,  the  law  adjudges  it  to  him  who  has  the  legal  title. 
The  boundaries  in  a  deed  are  to  be  Hrst  regarded;  the  courses  and  distances 
next. 

Trespass,  guare  clausum  fregit.    Plea,  Not  guilty. 

This  action  was  brought  to  try  the  title  to  certain  lands  claimed  by 
both  parties.  It  was  chiefly  a  question  of  location  and  of  holding, 
and  the  only  points  embraced  in  it  are  noticed  by  the  following 

Charge  of  the  Court  to  the  jury. 

Trespass  is  an  injury  to  the  plff's.  possession;  he  must  therefore 
show  himself  in  possession,  though  this  need  not  always  be  an  actual 
exclusive  possession.  Where  woodland  lies  between  two  persons, 
both  claiming  it,  it  is  a  mixed  possession,  and  the  law  adjudges  it  to 
him  who  has  the  legal  title.  The  plff.  in  this  case  contends  that  he, 
and  those  under  whom  he  claims,  have  had  the  uninterrupted  posses- 
sion of  this  land  for  20  years.  If  this  is  proved  it  is  a  good  title 
in  ejectment.  Where  a  deed  calls  for  natural  and  known  bound- 
aries, you  are  to  go  to  these  boundaries,  disregarding  courses  and  dis- 
tances. If  the  deed  gives  courses  and  distances,  and  not  known 
boundaries,  you  are  to  go  by  courses  and  distances,  disregarding  the 
quantity  of  acres.  Boundaries  first,  and  courses  and  distances  next, 
without  so  much  respecting  the  quantity  of  acres.  The  deft's.  title 
(Scudders)  is  the  oldest,  and  he  is  entitled  to  take  his  courses  and 
distances  go  where  they  may. 

The  deft,  claims  as  a  tenant  by  the  curtesy.  If  Mrs.  Lank  was 
not  actually  seized  in  her  lifetime,  he  can  have  no  title  bv  the  cur- 
tesy, unless  indeed,  the  testimony  goes  so  far  as  to  prove  him  in  the 
undisturbed  possession  for  20  years. 

The  plff.  had  a  verdict,  six  cents  damages. 

Frame  and  Cullen  for  plff.     Layton  and  Rodney  for  deft. 


THE  PRES.,  DIRECTORS  AND  CO.  of  the  Bank  of  WILMING- 
TON and  BRANDYWINE  vs.  WILLIAM  B.  COOPER,  Adm'r 
of  THOMAS  COOPER,  Deceased. 

If  a  note  is  payable  at  a  certain  place,  demand  at  the  place  must  be  averred. 
The  want  of  funds  of  the  drawer  at  the  bank  will  excuse  the  demand  there 

but  this  must  be  averred.  ' 

The  notarial  book  of  a  deceased  notary,  is  evidence  of  the  facts  it  states  in 

relation  to  his  having  notified  the  indorser. 


Bank  of  W.  &  Bkandywine  vs.  Cooper's  Adm'r.  11 

SuMMOXs  case.  Narr.  Pleas.  Non  assumpsit ;  payment  and  dis- 
count, and  the  Act  of  Limitations.    Reps,  and  issues. 

This  was  an  action  brought  by  the  Bank  of  W.  and  B.  as  the 
liolder  of  a  note  dated  18th  Jan.  ]819,  for  $2,000:  against  W.  B. 
(!ooper,  adm'r.  of  Thos.  Cooper,  who  was  the  indorser  of  said  note. 
The  note  was  as  follows : 

"  18  January,  1819. 
I'^or  $3,000. 

Sixty  days  after  date  I  promise  to  pay  to  Thomas  Cooper, 
]''sq.,  or  order^  two  thousand  dollars,  without  defalcation,  for  value 
received;  negotiable  and  payable  at  the  Bank  of  Wilmington  and 
Brandywine.  0.  HORSEY. 

Credit  the  drawer,  Thomas  Cooper. 
To  be  done  for  eighteen  hundred  dollars.  0.  H." 

The  note  was  indorsed  "  Thomas  Cooper.*'  Xoted  Mar.  21.  Pro't. 
Mar.  23.    Cr.  Dec.  13,  1828,  $1,020  44  in  full  of  in't. 

The  declaration  alledged  tlie  making  and  indorsement  of  a  note 
C'f  $2,000,  and  averred  "  that  afterwards  when  the  said  note  became 
due  and  payable  according  to  the  tenor  and  effect  thereof,  to  wit:  on 
Ihe  22nd  of  March,  in  the  year  afs'd.  at  Wilmington,  in  the  county 
(if  Newcastle  and  state  afsd.  to  wit:  at  Sussex  county  afsd.  the  said 
note  so  indorsed  as  afsd.  was  duly  presented  for  payment  to  the 
^aid  0.  Horsey  and  the  said  0.  Horsey  then  and  there  had  notice 
of  the  said  indorsement  made  thereon  as  afsd,  was  then  and  there  re- 
([uested  to  pay  the  said  sum  of  money  in  the  said  note  specifier!  ac- 
cording to  the  tenor  and  effect  of  the  said  note  and  of  the  said  in- 
dorsement so  made  thereon  as  afsd.  but  that  the  said  0.  Horsey  did 
not  nor  would,  at  the  said  time  when  the  said  note  was  so  presented 
10  him  for  payment  thereof  as  afsd.,  or  at  any  time  afterwards,  pay 
lhe  said  sum  of  money  therein  specified,  or  any  part  thereof,  but 
A'/holly  neglected,  &c.  of  all  of  which  said  several  premises,  the  said 
Thomas  Cooper  afterwards,  &c.  had  notice."  The  second  count 
declared  on  a  note  made  by  0.  Horsey,  and  indorsed  by  Thos.  Cooper 
1o  plffs.  for  $1,800,  and  then  averred  a  presentment  to  0.  Horsey  and 
non-payment  as  in  the  first  count. 

The  execution  of  the  note  and  the  indorsement  were  admitted ;  also, 
the  probate  by  the  cashier.  The  Xotary  Public  being  dead,  his 
handwriting  was  admitted  and  the  protest  read,  subject  to  all  legal  ob- 
jections. The  protest  was  dated  20th  March  1829,  and  stated  a  pre- 
sentment at  the  house  of  the  drawer,  0.  Horsey,  who  was  not  at  home 
"  and  the  said.  0.  Horsey  not  appearing  at  the  said  bank,  nor  any 
])erson  or  persons  on  his  behalf,  to  pay  off  the  sum  dus  on  the  said 
note,  and  the  indorser  being  duly  notified  of  the  non-payment 
thereof "  the  protest  was  thereupon  made.  The  notary's  book  was 
jilso  produced,  in  which  was  the  following  memorandum: — 

"  B.  W.  &  B.,  March  20,  1819." 
(Copy  of  the  note  and  indorsement.) 
"  Noted,  protest  sent  to  bank." 
Thomas  M'Dowell,  Esq.  sworn.     Proves  the  handwriting  of  Ed- 
■\vard  Roche,  the  Notary  Public,  by  whom  this  protest  and  memoran- 


12  Bank  of  \V.  &  Bkandywine  vs.  Cooper's  Adm'r. 

dum  were  made.  He  is  now  dead.  This  is  his  notarial  book,  and 
tlie  official  registry  of  the  demand  and  protest  of  this  note.  The  book 
came  to  me  with  the  records  and  dockets  of  Mr.  Roche,  who  was  a 
magistrate,  and  whom  I  succeeded  in  office.  I  am  also  a  Notary 
Public.  The  mails  have  usually  left  Wilmington  for  Georgetown  on 
^Mondays,  Wednesdays  and  Fridays.  Mr.  Roche  was  in  the  habit 
of  notifying  the  indorser  on  the  last  day  of  grace.  If  the  drawer  or 
indorser  lived  in  town,  he  called;  if  out  of  town,  he  mailed  a  letter 
on  the  last  day  of  grace.  Thomas  Cooper  lived  in  Georgetown.  The 
note  became  due  on  the  19th  March  1819,  payable  on^the  22d.  The 
date  at  the  top  of  the  register,  is  the  time  the  notary  received  the 
note  from  the  bank. 

Bayard  for  deft.,  moved  a  nonsuit. 

1st.  We  could  have  demurred  to  this  declaration  and  had  judg- 
ment, because  there  is  no  allegation  of  presentment  and  demand  on 
the  last  day  of  grace,  at  the  place  where  the  note  is  made  payable. 
If  this  was  matter  the  plff.  was  bound  to  alledge  in  his  narr,  he  can- 
not prove  it  without  such  allegation;  it  is  like,  indeed  it  is,  a  condi- 
tion precedent.  But  the  proof  is,  that  the  note  was  delivered  to 
Roche  the  notary,  on  the  20th;  it  was  therefore  not  at  the  place  of 
])ayment  when  it  became  due. 

2nd.  The  note  has  been  altered  so  as  to  discharge  the  indorser. 
It  was  drawn  for  $2,000,  and  under  the  signature  of  the  drawer  is 
written  "  to  be  done  for  $1,800."  Now  unless  this  can  be  shown 
to  have  been  done  with  the  assent  of  the  indorser  he  is  discharged; 
a  contrary  doctrine  would  enable  the  holder  and  drawer  materially 
to  change  the  contract  of  the  indorser.  The  alteration  is  the  same 
as  if  the  $2,000  had  been  stricken  out,  and  $1,800  inssrted,  which 
would  undoubtedly,  discharge  the  indorser.  The  indorser  can  only 
be  held  according  to  his  contract,  and  you  cannot  in  any  manner,  vary 
that  contract  without  his  consent,  without  discharging  him.  Dimin- 
ishing a  note  may  equally  injure  an  indorser  as  increasing  it.  Sup- 
pose an  agreement  between  the  drawer  and.  indorser  for  a  division  of 
the  money  raised  on  the  note,  the  very  inducement  to  the  indorser's 
signing  it  might  be  defeated  by  lessening  the  sum.  The  general  prin- 
ciple is  always  the  same  and  invariable.  This  note  is  declared  on  as 
a  note  of  $2,000.  The  words  "  to  be  done  for  $1,800  "  makes  it  a 
note  for  $1,800,  which  is  a  variance.  The  count  charging  it  to  be 
an  indorsement  of  a  note  of  $1,800,  must  make  it  an  indorsement  of 
an  altered  note,  and  then  the  assent  of  the  indorser  to  the  alteration 
must  be  proved. 

3rd.  The  presentment  and  demand  must  be  made  at  the  place  on 
the  last  day  of  grace.  The  protest  of  the  notary  is  no  evidence  in 
cases  of  inland  bills  and  promissory  notes.  It  is  6nly  evidence  of 
the  demand  and  refusal  in  case  of  foreign  bills;  2  Saund.  PI.  303. 
But,  supposing  it  to  be  evidence,  it  proves  the  demand  on  the  64th 
day,  the  day  after  the  last  day  of  grace.  He  noted  it  for  protest  on 
the  2l8t,  and  protested  it  on  the  23d,  which  was  one  day  too  late,  as 
the  note  was  due  on  the  19th  and  payable  the  22nd.  But  how  is 
the  notice  proved?  Not  by  the  protest.  I  admit  that  the  note  or 
memorandum  of  the  notary  may,  after  his  death,  be  admitted  to  prove 
notice,  if  the  note  itself  contains  such  proof,  which  this  does  not. 


Bank  of  W.  &  Beaxdywine  vs.  Cooper's  Adm'r.  13 

But  as  to  the  legal  liability  of  the  iiidorser:  the  contract  of  Mr. 
Cooper  was,  that  if  the  note  was  presented  at  the  bank  on  the  last 
day  of  grace  and  not  paid,  and,  if  thereupon,  reasonable  notice  was 
given  to  him,  he  would  be  liable. 

The  party  here  having  neglected  to  set  forth  a  demand  at  the  bank, 
he  could  not  give  it  in  evidence  if  he  had  the  proof  ready.  14  East 
500.  And  there  is  no  proof  of  notice;  the  memorandum  is  nothing 
unless  it  set  forth  the  time  and  manner  of  the  notic3.  Nor  is  the 
want  of  funds  of  the  drawer  at  the  bank  an  answer,  unless  the  pre- 
sentment at  the  bank  be  alledged.  This  position  does  not  contro- 
vert the  case  in  Wheaton.  Cli.  on  Bills,  283-7;  1  Saund.  PL 
358;  16  East,  110-13;  5  Taunt.  30;  G  Com.  L.  R.  53,  73,  83,  95, 
87,  96,  94.  Opinions  of  Eldon,  Redesdale,  Burrow,  Parke,  Bailey 
and  Wood.  Wood  was  considered,  in  his  day,  as  the  first  special 
pleader  in  England. 

Layton  for  plff. 

1st.  As  to  the  alteration  in  the  amount  of  the  note.  It  is  not  ma- 
terial; not  in  the  body  of  the  note;  a  memorandum  under  the  names 
of  the  drawer  and   indorser,  limiting  the  responsibility  of  each. 

3nd.  As  to  the  demand.  The  demand  was  made  on  the  proper 
person;  and  the  fact  that  Horsey  had  no  funds  in  bank  excuses  a  de- 
mand there.  An  inspection  of  the  bank-books  is  a  sufficient  demand. 
Ch.  on  Bills,  333-4;  3  Burr.  669. 

3rdly.  As  to  notice.  The  notice  must  be  given  by  a  third  person 
for  the  sake  of  the  proof;  the  notary  acts  as  the  agent  of  the  bank; 
he  is  a  public  officer  acting  under  oath,  and  entitled  to  credit.  He 
has  here  made  a  memorandum  of  his  having  given  due  notice.  He 
states  that  on  the  83d  notice  had  been  given,  and  it  must  have  been 
by  mail;  this  was  his  practice.  Notice  by  the  next  mail  is  sufficient, 
and  this  note  was  payable  on  the  33nd.  An  inland  bill  of  exchange 
is  not  to  be  protested  until  the  day  after  the  last  day  of  grace.  Chitty 
on  Bills,  365. 

Wales  for  plff.  This  is  a  question  of  pleading;  whether  it  is  neces- 
sary to  aver  in  a  declaration,  the  presentment  at  the  place  where 
the  note  was  made  payable.  If  the  deft,  was  willing  to  put  his  case 
on  this  issue  he  should  have  demurred;  then,  if  the  declaration  were 
defective,  the  court  would  allow  an  amendment.  By  pleading  to  the 
declaration  and  moving  a  nonsuit,  the  deft,  cuts  off  this  privilege. 
The  court,  therefore,  will  not  allow  this  practice.  But  the  present- 
ment is  substantially  alledged  as  contended ;  the  allegation  is,  that  it 
was  presented  for  payment  according  to  the  tenor  and  effect  of  the 
note.  It  has  been  decided  by  the  House  of  Lords,  that  a  particular 
averment  of  presentment  at  the  place  was  unnecessary,  it  being  suffi- 
cient to  aver  generally,  that  presentment  was  duly  made  according  to 
the  tenor  of  the  note.  That  case  was  on  a  qualified  acceptance.  6 
C.  L.  R.  53.  Roe  vs.  Young.  Best,  Garrow,  Richardson,  Graham, 
as  well  as  Mansfield,  Ellenhorough,  Bvller,  Heath  and  Rook,  all  con- 
cur in  this  opinion.  This  is  the  settled  practice  in  the  courts  of  this 
state,  and  of  the  United  States. 

3nd.  As  to  the  variance.  What,  is  the  contract.  A  note  for  $3,000. 
The  memorandum  to  be  done  for  $1,800,  is  no  part  of  the  contract 


14  Bank  op  W.  &  Brandywine  vs.  Cooper's  Adm'r. 

The  drawer  probabl)^  paid  of!  $200  on  the  renewal  of  the  note, 
which  made  it  unnecessary  to  discount  more  than  $1,800.  This  in- 
dorsement is  simply  a  credit  of  $200  to  a  note  of  $2,000.  As  to  the 
mode  of  presentment  and  of  notice,  these  being  matters  properly  for 
the  court  and  jury,  I  do  not  think  it  necessary  to  answer  them  on  this 
motion. 

Rogers,  for  deft,  in  reply.  Notice  is  a  question  of  law,  not  for  the 
jury,  but  for  the  court.  So  also  is  the  demand;  and  we  call  on  the 
court  to  decide,  whether  there  has  been  a  legal  demand  in  this  case 
or  an  equivalent  to  it.  Where  is  the  testimony  ?  Is  it  the  bank  state- 
ment? This  is  not  evidence;  and  no  evidence  can  be  admitted  on 
this  point,  as  the  demand  at  the  bank  is  not  laid  in  the  declaration. 
There  is  no  pretence  that  such  a  demand  was  in  fact  made  as  a  differ- 
ent one,  a  demand  at  the  house  of  Horsey,  is  alledged.  There  is  no 
evidence  of  notice  to  the  indorser.  The  protest  is  no  evidence  in 
the  case  of  an  inland  bill  or  promissory  note.  On  a  foreign  bill  it  is 
the  only  evidence.  A  note  may  be  recovered  on  as  well  without  a 
protest  as  with  it.  If  a  protest  be  made,  the  notary  must  be  pro- 
duced to  prove  it  as  any  other  witness;  the  time,  manner,  &c.  His 
only  business  is  in  relation  to  the  presentment  and  demand,  and  not 
to  give  notice.  If  he  does  this  he  must  prove  it.  If  the  indorser 
reside  in  town,  he  must  be  notified  personally;  if  out  of  town,  by 
letter  put  in  the  post  office  in  time  to  go  by  the  next  mail,  and  di- 
rticted  to  the  post-office  nearest  the  indorser's  residence.  In  the  case 
of  Sappington  vs.  Caldwell,  in  Newcastle  county,  the  plff.  was 
nonsuited  because  the  notice  was  sent  to  Wilmington,  when  New- 
port was  the  nearest  post-office.  The  manner  of  the  notice  must 
therefore  be  proved  to  enable  the  court  to  judge  whether  it  is  legal 
notice.  The  memorandum  of  the  notary  shows  nothing;  the  protest 
alone,  states  that  notice  had  been  given. 

2ndly.  Is  the  presentment  at  the  bank  a  condition  precedent  which 
plff.  must  aver  in  his  narr?  The  case  in  14  East,  is  directly  on  this 
point:  and  advantage  may  be  taken  of  it  by  motion  for  a  nonsuit  as 
well  as  on  demurrer.  14  East,  500;  5  Taunt.  6  T.  R.  710;  Dough 
679. 

3dly.  The  first  count  is  on  a  note  for  $1,800.  The  deft,  never 
indorsed  such  a  note.  The  second  count  is  on  a  note  for  $2,000, 
which  the  bank  never  discounted.  As  to  the  indorsement  "  to  be 
done  for  $1,800,"  the  question  is  not  whether  it  injures  the  deft, 
but  whether  it  varies  his  contract.  Is  it  the  contract  he  entered  into  ? 
If  it  be  not,  he  is  discharged.    Darley  vs.  English. 

Mr.  Wales  referred  to  the  case  of  the  Bank  of  W.  and  Brandy- 
wine  vs.  Bradun,  and  produced  the  following  note  of  that  case,  in 
the  handwriting  of  C.  Justice  Johns. 

"BankofW.&B.  )  j    ,,     „  ^      . 

I  In  the  Supreme  Court. 

^*-  (         Tried  at  Nov.  Term,  1826. 

Thomas  Bradun.    ) 

The  register  of  Edward  Roche,  which  contained  a  copy  of  the  note 
on  which  this  suit  was  founded,  the  deft,  being  an  indorser,  on  which 
was  the  following  entry:  "10th  of  October,  1818.     (Here  was  the 


Bank  of  W.  &  Brandy  wine  vs.  Cooper's  Adm'r.  15 

copy  of  the  note)  noted,  protested  and  returned  to  bank,"  being  of- 
fered in  evidence,  after  proof  of  the  handwriting  and  death  of  Ed- 
ward Roche  was  objected  to,  and  decided  by  the  court  to  be  admissi- 
ble evidence. 

The  above  appears  from  the  notes  of 

KEXSEY  JOHXS." 

The  Court  being  about  to  deliver  their  opinion,  the  plff's.  counsel 
moved  for  leave  to  amend  the  narr,  which  was  refused,  the  court  stat- 
ing that  they  had  never  allowed  an  amendment  in  a  material  point 
after  the  jury  were  sworn. 

G.  J.  Clayton,  now  delivered  the  opinion  of  the  court  as  follows: 

"  The  engagement  of  the  deft,  in  this  case  to  the  holder  was,  that 
he  would  pay  the  amount  of  this  note  to  him  in  case  it  was  presented 
at  the  Bank  of  Wilmington  and  Brand3'wine,  when  it  became  due 
for  payment,  and  a  failure  to  pay  it  there,  with  due  notice  of  non- 
payment. The  proof  of  these  facts  constitutes  the  liability  of  the 
deft. 

The  declaration  should  have  averred  that  the  note  was  presented 
at  the  bank  for  payment;  that  it  was  not  paid,  and  that  the  indorser 
had  notice  of  such  demand  and  non-payment.  This  is  the  form  of 
declaring,  as  established  by  the  books  of  precedents  as  far  as  we  have 
looked  into  them. 

The  declaration  alledges  a  personal  demand  on  0.  Horsey.  We 
consider  that  it  is  in  this  respect  substantially  defective ;  that  this  de- 
fect appears  on  the  face  of  the  declaration  itself,  the  note  being  set 
out  in  the  declaration,  the  place  where  the  demand  ought  to  have 
been  made  appears  on  the  pleadings,  and  we  apprehend  that  this  is 
such  a  substantial  defect  in  pleading  as  that  the  deft,  may  avail  him- 
self of  it  on  demurrer,  or  on  motion  in  arrest  of  judgment.  Instead 
of  averring  that  a  demand  was  made  at  the  hank,  the  plff.  alledges 
that  it  was  made  on  0.  Horsey  personally;  and  the  question  now  is, 
whether  under  this  allegation  the  plff.  shall  be  permitted  to  prove 
a  demand  essentially  different  from  his  own  allegation  to  support  his 
action.    The  proofs  and  allegations  ought  to  correspond. 

The  plff.  insists  that  there  were  no  funds  at  the  bank  at  the  time 
when  this  note  became  aue;  and,  therefore,  he  was  excused  for  not 
presenting  it  for  payment.  Whenever  a  party  is  bound  to  alledge 
any  matter  to  be  done  by  him  to  entitle  him  to  an  action,  if  he  has 
any  matter  of  excuse  for  not  doing  the  act,  he  is  bound  to  alledge 
this  matter  of  excuse,  or  he  will  not  be  permitted  to  give  it  in  evi- 
dence, if  it  is  objected  to  at  the  time.  Here,  before  the  plff.  could 
entitle  himself  to  an  action  he  should  have  presented  the  note  at 
bank  for  pajnnent;  or,  if  he  meant  to  excuse  himself  for  not  present- 
ing it  according  to  this  legal  obligation,  he  should  set  out  the  matter 
in  his  declaration,  which  he  relies  on  as  an  excuse,  that  the  court  may 
judge  of  its  sufficiency.  Wlien  this  note  became  due,  had  it  been 
presented  at  the  bank  for  payment,  and  there  had  been  a  failure  to 
pay,  and  due  notice  had  been  given  to  Mr.  Cooper,  he  would  have 
been  liable  to  the  plff.  But  in  an  action  founded  on  these  facts,  it  is 
necessary  to  state  the  facts  as  they  exist.     So  if  0.  Horsey  had  no 


16  John  Sipple  vs.  Philip  Beeen. 

funds  in  the  bank  at  the  time  the  note  became  due,  as  the  bank  was 
the  holder  of  the  note,  it  miglit  not  be  necessary  to  make  a  formal 
presentment  and  demand,  and  the  mere  circumstances  of  its  appearing 
from  the  books  of  the  institution,  that  there  were  no  funds  there  to 
meet  tlie  note,  would  in  law  excuse  the  formal  presentment  and  de- 
mand; but  when  this  matter  is  intended  to  be  relied  on  as  an  excuse, 
such  matter  should  appear  on  the  face  of  the  declaration,  or  the  plff. 
is  not  at  liberty  to  "prove  it.  As  the  plff.  has  not,  averred,  either  a 
demand  at  the  bank,  or  any  matter  in  excuse  for  not  making  such  de- 
mand, but  has  relied  in  his  declaration  on  a  personal  demand  on  0. 
Horsey,  we  consider  that  he  is  not  at  liberty,  under  this  declaration, 
to  prove  any  other  species  of  demand  or  excuse  than  that  which  he 
has  chosen  to  rely  upon  himself,  and  of  course  a  nonsuit  must  be  en- 
tered." 

The  Chief  Justice  also  added:  — 

It  is  not  necessary  therefore,  to  give  any  opinion  on  the  other 
points  started  by  the  deft,  although  there  is  one  on  which  I  have  a 
strong  opinion,  and  that  is,  that  it  appears  from  the  proof,  that  de- 
mand was  made  either  on  the  day  before  or  on  the  day  after  the  last 
day  of  grace.  The  note  of  the  notary  on  the  back  of  the  note  is 
"noted  on  21st.'^  on  the  certificate,  he  says  demand  was  made  on  the 
23d.  Xow  the  last  day  of  grace  was  the  22nd.  We,  however,  give  no 
opinion  on  this  point. 

I  must  be  permitted  to  say  a  word  as  to  the  case  of  Nicholls  vs. 
Webb,  in  5th  Wheaton,  so  far  as  it  is  considered  an  authority  to 
establish  the  point  that  the  entry  on  the  record  of  a  deceased  notary's 
book  "  that  due  notice  was  given  to  the  indorser  "  is  to  be  taken  as 
proof  that  legal  notice  was  given.  The  book  I  would  hold  as  evi- 
dence of  all  the  facts  it  gives  as  to  the  time,  manner,  &c.,  of  notice, 
by  reason  of  his  death.  If  we  go  further,  we  make  the  notary  the 
judge  of  what  is  legal  notice  to  fix  the  indorser.  Now  what  is,  legal 
notice  is  a  question  of  law  for  the  court,  and  not  for  the  notary.  He 
should  note  the  facts ;  when  he  gave  notice ;  to  whom ;  the  mode,  &c. 
These  are  facts,  and  his  record  would  be  sufficient  to  prove  them; 
biit  the  conclusion  of  law,  whether  it  is  due  notice  or  not,  is  for  us  to 
decide,  and  not  him.  If  the  case  in  Wheaton  goes  as  far  as  it  ap- 
pears it  did  go,  it  has  not  my  approbation  as  sound  law. 

The  plff.  was  nonsuited. 

Layton  and  yVales  for  plff. 

Bayard  and  Rogers,  for  deft. 


JOHN  SIPPLE  vs.  PHILIP  BEEEN. 

In  an  action  on  the  warranty  of  a  horse,  proof  that  the  deft.,  pending  the 
nepociation,  said  to  a  third  person,  I  will  warrant  the  horse  to  be  sound, 
will  not  sustain  the  action. 

And  such  a  warranty  tho'  made  to  an  agent  of  both  parties  appointed  to  ef- 
fect an  exchange  between  them,  will  not  support  the  action  if  the  exchange 
be  not  made  by  the  agent. 

Assumpsit  on  a  warranty  in  the  exchange  of  horses.     Plea,  non 
assumpsit.    Issue. 


William  H.  Davis'  Case.  17 

The  narr  contained  two  counts;  one  on  an  executed,  the  other  on 
an  executory  contract,  but  both  on  the  warranty. 

The  proof  was,  that,  on  a  conversation  between  the  plff.  and  deft, 
about  the  exchange  of  horses,  they  agreed  to  refer  it  to  one  Cullen  to 
name  the  terms.  Cullen  and  Breen  went  out  together  to  examine 
deft's.  horse,  when  Breen  said  to  Cullen,  (Sipple  not  being  present,) 
that  the  horse  was  only  seven  years  old,  and  "  he  would  warrant  him 
as  sound  as  a  silver  dollar."  Cullen  not  liking  the  appearance  of  the 
horse,  declined  to  name  the  terms  of  the  exchange,  and  the  parties 
afterwards  agreed  upon  the  terms  themselves,  without  the  agency  of 
Cullen.  The  horse  was  at  the  time  unsound  and  worthless,  having 
been  affected  by  a  chest  founder,  which  is  a  secret  disease.  He  very 
shortly  died. 

Bates  and  Frame  for  deft,  moved  a  nonsuit,  on  the  ground  that  the 
proof  of  the  warranty  had  failed.  The  suit  was  on  the  warranty,  and 
not  for  deceit  or  fraud  in  misrepresenting  the  qualities  or  condition 
of  the  horse.  The  warranty  must  be  proved  to  have  entered  into  the 
contract,  which  it  did  not,  as  the  expression  relied  on  was  made  to  a 
third  person. 

Ridgely  and  IJufjingion  contra,  contended  that  this  third  person 
was  the  agent  of  both  parties,  and  that  the  exchange  was  finally  made 
on  the  faith  of  the  warranty  made  through  him  to  the  plff. 

To  this  it  was  replied,  that  though  Cullen  was  the  agent  of  both 
parties  at  the  time  the  expression  was  used,  he  ceased  to  be  such; 
that  warranty  was  never  acted  upon,  nor  is  there  any  proof  that  it 
was  communicated  to  the  plff.  And  the  special  guaranty  to  Cullen 
should  have  been  averred  in  the  7iarr. 

The  motion  prevailed.  Judgment  of  nonsuit. 


WILLIAM  H.  DAVIS'  CASE. 

Indentures  of  apprenticeship  will  not  be  vacated  merely  because  the  master  is 
compelled  to  take  the  benefit  of  the  insolvent  laws. 

Wm.  H.  Davis  applied  to  be  released  from  his  indentures  of  appren- 
ticeship to  John  W.  Clift,  on  the  ground  that  his  said  master  had  at 
the  present  term,  been  discharged  from  prison  as  an  insolvent  debtor. 

The  court  refused  to  discharge  the  indentures  merely  on  this 
ground.  If  the  master  do  not  continue  his  business  so  that  the  peti- 
tioner may  obtain  a  competent  knowledge  of  his  trade,  he  may  here- 
after apply  for  relief.  The  fact  of  the  master's  insolvency,  is  not 
conclusive  that  he  may  not  yet  perform  his  covenant  to  teach  the 
petitioner,  or  cause  him  to  be  taught  the  art,  trade  and  mystery,  of 
carriage  making. 

There  was  no  objection  taken  to  the  form  of  the  binding;  and, 
though  the  indentures  were  defective  in  this  respect,  the  court  would 
not  notice  such  defects,    (a). 

Petition  dismissed. 

(a)  So  many  eases  have  occurred  before  the  Eeporter,  in  another  ca- 
pacity, of  objection  to  the  form  of  indentures  of  apprenticeship,  and  in 
which  it  became  necessarv  to  discharge  the  petitioner  merely  on  the 

3 


18  Cooper  and  Wife  vs.  Mat. 

DAVID  D.  COOPER  and  Wife  vs.  THOMAS  MAY. 

A  fi.  fa.  cannot  issue  on  a  judgment  before  a  justice  of  the  peace,  after  the 

death  of  deft,  without  a  set.  fa. 
It  teema  that  a  judgment  may  be  kept  alive  by  a  fi.  fa.,  issued  within  the  year 

and  day,  and  by  regular  continuances  by  vice  oomea  afterwards,  as  againat 

the  original  party. 
And  on  the  deft's.  death  a  fi.  fa.  may  issue,  if  by  relation  it  can  be  tested 

previous  to  the  death. 
But  after  deft's.  death  and  one  term  elapsed,  no  execution  can  issue  without 

a  previous  ad.  fa. 

Certiorari.    Judgment  before  a  justice  of  the  peace  in  an  action 
at  the  suit  of  Thomas  May  vs.  Nathaniel  D.  Masten.    An  execution 

ground  of  the  invalidity  of  the  binding,  that  he  thinks  proper  to  ap- 
pend (though  somewhat  out  of  place)  a  few  forms  of  binding,  which  it 
may  be  useful  for  justices  of  the  peace  and  trustees  of  the  poor  to  con- 
sult. 

No.  1.  Form  of  Indenture  by  the  father;  or  (if  the  father  do  not  re- 
side in  the  state,  or  if  there  be  no  father,)  by  the  guardian;  or 
(if  there  be  also  no  guardian,)  by  the  mother. 

This  Indenture  made  this day  of A.  D.  18 — .    Witness- 

cth :  That  A.  B.  father  of  Y.  Z.  a  minor,  hath,  in  the  presence  and 

with  the  approbation  of  C.  D.  a  justice  of  the  peace  for county, 

in  the  state  of  Delaware,  and  in  consideration  of  the  sum  of 

dollars,  lawful  money  of  the  said  state,  advanced  and  paid  to  the  said 
A.  B.  by  G.  H.  of  said  county,  put  and  bound,  and  by  these  presents 
doth  put  and  bind  the  said  Y.  Z.,  a  white  boy,  who  is  now  of  the  age  of 

years months  and days,  as  nearly  as  can  be  ascertained, 

as  an  apprentice  to  the  said  G.  H.  his  executors,  administrators  and  as- 
signs, for  and  during  the  term  of years months  and 


days,  from  the  day  of  the  date  hereof,  the  said  Y.  Z.  to  serve  the  said 
G.  H.,  his  executors,  administrators  and  assigns,  as  an  apprentice,  for 
the  term  aforesaid,  or  until  he  shall  arrive  at  the  age  of  twenty-one 
years,  if  that  shall  happen  sooner  than  the  expiration  of  the  term 
aforesaid,  and  no  longer.  And  the  said  G.  H.  for  himself,  his  execu- 
tors and  administrators,  doth  hereby  covenant  and  contract  tO  teach, 
or  cause  the  said  Y.  Z.  to  be  taught  the  art,  trade  and  business  of 

to  the  best  of  his  skill,  knowledge  and  ability;  to  give 

to  the  said  Y.  Z.  reasonable  education  in  reading  and  writing,  to  wit : 

years  and months  schooling  during  his  said  apprenticeship ; 

to  well  support  and  clothe  the  said  Y.  Z.  during  the  said  term,  and  at 
the  regular  expiration  of  his  apprenticeship,  to  furnish  him  with  two 
suits  of  clothes  suitable  to  his  condition. 

In  witness  whereof,  the  said  A.  B.  and  G.  IT.  have  hereunto  set  their 
hands  and  seals  respectively  the  day  and  year  aforesaid. 

A.  B.         [seall 
G.  H.        [seal] 
Signed,  sealed  and  delivered  \ 
in  the  presence  of  > 

J.  K.  and  L.  M.  ) 

County,  88.     This  indenture  was  executed  in  the  presence,  and 

with  the  approbation  of  the  subscriber,  a  justice  of  the  peace  fop 

county  aforesaid,  this day  of  ^ 18 — 

C.  D.  Jus.  P. 


CooPEH  AND  Wife  vs.  May.  19 

issued  in  1826,  on  which  a  sale  was  made,  but  no  part  applied  to  that 
execution.     Hasten  died  in  1826,  and  his  widow  administered,  and 

No.  2.  Form  of  Indenture  by  the  apprentice  himself. 

This  Indenture,  made  this day  of A.  D.  18 — .    Witness- 

eth :  That  Y.  Z.  a  minor,  of  the  age  of  fourteen  years  and  upwards,  to 

wit :  of  the  age  of years months  and days,  as  nearly  as 

can  be  ascertained,  and  who  has  no  father  or  guardian  within  this  state, 
hath,  in  the  presence,  and  with  the  approbation  of  C.  D.  and  E.  F.  two 

of  the  justices  of  the  peace,  of  the  county  of ,  put  and  bound, 

and  by  these  presents  doth  put  and  bind  himself  as  an  apprentice  to  G. 
H.  of  the  said  county  of ,  his  executors,  administrators  and  as- 
signs, for  and  during  the  term,  &c.  &c.  {as  in  the  former  precedent.) 

In  witness,  &c.  &c. 

County,  ss.     This  indenture  was  executed  in  the  presence, 

and  with  the  approbation  of  the  subscribers,  two  of  the  justices  of  the 

peace  for county  aforesaid,  (acting  together  and  signing  this 

certificate  in  the  presence  of  each  other,)  this day  of ,  18 — . 

Xo.  3.  Form  of  Indenture  of  a  coloured  boy. 

This  Indenture,  made  the day  of A.  D.  18 — .  Witness- 

eth :  That  A.  B.  father  of  Y.  Z.  a  minor,  in  consideration  of  the  sum 

of dollars,  lawful  money  of  the  state  of  Delaware,  advanced 

and  paid  to  the  said  A.  B.  by  G.  H.  of  county,  in  the  said 

state,  hath,  in  the  presence,  and  with  the  approbation  of  E.  F.  a  justice 

of  the  peace  for  the  said  county  of ,  put  and  bound,  and  by 

these  presents  doth  put  and  bind  the  said  Y.  Z.  a  negro  (or  mulatto) 

boy,  who  is  now  of  the  age  of years months  and days, 

as  nearly  as  can  be  ascertained,  as  a  servant  to  the  said  G.  H.  his  ex- 

i^cutors,  administrators  and  assigns,  for  and  during  the  term  of 

years months  and days,  from  the  day  of  the  date  hereof; 

the  said  Y.  Z.  to  serve  the  said  G.  H.  his  executors,  administrators  and 
assigns,  as  a  servant,  for  the  term  aforesaid,  or  until  he  shall  arrive 
at  the  age  of  twenty-one  years,  if  that  shall  happen  sooner  than  the  ex- 
piration of  the  term  aforesaid,  and  no  longer.  And  the  said  G.  H.,  for 
himself,  his  executors  and  administrators,  doth  hereby  covenant  and 
contract  to  teach,  or  cause  the  said  Y.  Z.  to  be  taught  the  art,  trade  and 
business  of to  the  best  of  his  skill,  knowledge  and  abil- 
ity;  to  well  support  and  clothe  the  said  Y.  Z.  and  at  the  regular  expira- 
tion of  his  servitude,  to  furnish  him  with  two  suits  of  clothes  suitable 

to  his  condition,  and  also  to  pay  to  the  said  Y.  Z.  the  sum  of 

dollars  in  lieu  of  schooling,  it  being  inexpedient  to  stipulate  for  edu- 
cation in  reading  and  writing. 

In  witness  whereof,  &c.  &c.,  (attestation  and  certificate  as  in  form 
No.  1.) 

No.  4.  Form  of  Indenture  of  a  poor  coloured  boy  under  ten  years  old, 
by  two  justices  of  the  peace;  or  two  trustees  of  the  poor;  or  a 
justice  and  trustee. 

This  Indenture,  made  this day  of A.  D.  18 — ,  between 

C.  D.  and  E.  F.  two  of  the  justices  of  the  peace  for county,  in 

the  state  of  Delaware,  of  the  one  part,  and  G.  H.  of  the  said  county 
and  state,  of  the  other  part : — 

Whereas,  the  said  C.  D.  and  E.  F.,  justices  as  aforesaid,  having  re- 
ceived information  of  a  certain  male  negro  (or  mulatto)  child,  named 


20  Cooper  and  Wife  vs.  May. 

afterwards  intermarried  with  Cooper.  An  alias  fi.  fa.  was  issued 
in  1829. 

This  was  the  error  assigned,  that  the  alias  fi.  fa.  issued  several 
years  after  the  defendant's  death,  and  without  any  sci.  fa. 

The  case  was  argued  by  Frame  for  the  plff.  in  error,  and  Johnson 
for  deft,  in  error. 

After  consideration,  the  Chief  Justice  delivered  the  following 
opinion :  — 

Clayton  C.  J. — "  On  the  13th  May,  1826,  judgment  was  ob- 
tained against  Nathaniel  D.  Mason,  by  default,  for  the  sum  of  $50. 
On  the  same  day  execution  issued,  returnable  13th  Nov.  1826,  and 
was  delivered  to  a  constable;  who,  on  the  22d  May,  1827,  returned 
the  same  with  an  inventory  of  the  goods  and  chattels  levied  on  and 
appraised  to  $75  84,  subject  to  prior  executions,  and  indorsed  '  goods 
sold  by  D.  Mason,  constable,  for  $122  37,  and  applied  to  prior  exe- 

Y.  Z.  within  the  said  county,  who  has  not  parents  able  to  maintain  him 
and  bring  him  up  to  industry,  and  in  suitable  employment,  did  issue 
process  under  their  hands  and  seals,  directed  to  J.  K.,  a  constable  of 
said  county,  commanding  him  to  bring  before  them  at  a  time  and  place 
therein  appointed,  the  said  Y.  Z.  and  also  his  parents;  and  the  said 
justices,  upon  the  parties,  or  such  of  them  as  could  be  found,  being 
brought  pursuant  to  said  process,  having  inquired  into  their  condition 
and  circumstances;  and  it  appearing  to  be  a  proper  case  for  binding 
the  said  Y.  Z.  according  to  the  second  section  of  the  Act  concerning 
apprentices  and  servants : 

Now,  therefore,  this  indenture  witnesseth ;  That  the  said  C.  D.  and 
E.  F.  justices  as  aforesaid,  in  pursuance  of  the  power  to  them  given  in 

the  said  act,  and  in  consideration  of  the  sum  of dollars,  lawful 

money  of  the  state  of  Delaware,  advanced  and  paid  to  A.  B.,  father  of 
the  said  Y.  Z.  by  the  said  G.  H.,  have  -ut  and  bound,  and  by  these 
presents  do  put  and  bind  the  said  Y.  Z.  a  poor  negro  (or  mulatto)  boy, 

who  is  now  of  the  age  of  years  ^months  and days,  as 

nearly  as  can  be  ascertained,  as  a  servant  to  the  said  G.  H.  his  execu- 
tors, administrators  and  assigns,  for  and  during  the  term,  &c.  &c., 
(as  in  form  No.  3.) 

Tn  witness  whereof,  the  said  C.  D.  and  E.  F.  justices  as  aforesaid, 
(being  together,  and  executing  this  indenture  in  the  presence  of  each 
other,)  and  the  said  G.  H.,  have  hereunto  set  their  hands  and  seals 
respectivelv,  the  day  and  year,  first  herein  written. 

C.  J).        [seall 
E.  F.        [seal] 
G.  H.        [seal] 
Signed,  scaled  and  delivered, 
in  the  presence  of 
L.  M.  and  N.  0. 

No.  5.  Form  of  Indenture  of  a  poor  coloured  hoy,  over  ten  years  old. 

Adopt  form  No.  4,  merely  adding  to  the  recital  these  words : — "  the 
said  justices  did,  upon  the  application  of  the  parents  of  the  said  Y. 
Z.,  postpone  the  said  binding  for  five  davs,  to  enable  the  said  parents, 
to  give  sufficient  security  for  indemnifying  the  county  against  the 
maintenance  of  the  said  Y.  Z.,  which  security  has  not  been  given,  al- 
though the  time  aforesaid,  has  expired." 


Cooper  and  Wife  vs.  May.  21 

cvitions/  Cooper  intermarried  with  the  widow  and  admr'x.  of  IN". 
D.  Masten,  who  died  on  the  28th  May,  1826.  On  the  13th  Oct.  1828, 
an  alias  execution  issued. 

The  exception  taken  in  this  case  is,  that  the  judgment  ought  to 
have  been  revived  by  scire  facias  against  the  adm'rx.,  before  issuing 
tlie  alias  fi.  fa.,  to  take  the  goods  in  the  hands  of  the  adm'rx. 
After  judgment,  if  no  execution  be  issued  within  the  year  and  day, 
it;  is  necessary  to  revive  the  judgment  by  scire  facias,  and  it  is  irreg- 
ular to  issue  a  fi.  fa.  or  other  execution  without  such  proceeding, 
unless  a  stay  be  given,  or  the  plff.  be  delayed  by  writ  of  error  or  in- 
junction. The  reason  why  the  plff.  is  put  to  his  sci.  fa.  after  the 
year,  is  because  where  he  lies  by  so  long  after  his  judgment,  it  shall 
be  presumed  that  the  judgment  is  executed,  or  that  the  plff.  has  re- 
leased the  execution;  and,  therefore,  the  deft,  is  not  to  be  disturbed 
without  being  called  upon,  and  having  an  opportunity  of  pleading 
that  the  judgment  is  executed,  or  the  release,  or  showing  other  cause, 
if  he  can,  why  execution  should  not  be  issued  against  him.  It  has 
been  said  that  execution  may  be  sued  out,  after  the  year,  without  a 
sci.  fa.  merely  upon  awarding  the  writ  upon  the  roll  within  the 
year,  and  continuing  it  down  by  vice  comes  non  misit  hreve  to  the 
time  of  serving  the  writ.  Carth.  283.  However,  it  seems  question- 
able, whether  the  writ  of  execution  ought  not  to  be  sued  out  within 
the  year,  and  returned  and  filed,  to  warrant  the  entry  of  continu- 
ances; for  in  a  subsequent  case,  it  Avas  adjudged  that  an  execution 
cannot  be  continued  on  the  roll  unless  it  be  returned  and  filed.  3 
Wils.  82.  Even  actually  suing  out  an  execution  and  continuing  it 
by  vice  comes  non  misit  hreve,  is  stigmatized  by  Lord  Holt  as  a 
\isurer's  trick.  2  Lord  Raymond,  208;  2  Sautids.  72;  1  Stra.  100; 
1  Crompt.  Prac.  344. 

But  it  is  not  necessary  in  this  case  to  decide  the  question,  whether 
it  is  necessary  to  sue  out  a  fi.  fa.  and  have  it  returned  and  filed,  in 
order  to  have  the  continuances  entered  so  as  to  entitle  the  plff.  to 
his  execution  at  any  time  afterwards  without  a  sci.  fa.;  because,  in 
this  case,  a  totally  different  question  presents  itself;  not  whether 
by  suitig  out  execution  and  having  it  regularly  continued  down  upon 
the  roll,  or  by  merely  awarding  the  writ,  and  continuing  it  in  the 
tame  manner,  j)lff.  may,  at  any  time  after  the  year,  take  out  execu- 
lion  against  the  deft.,  but  whether  in  such  case,  it  is  regular  to  take 
out  an  execution  against  a  deceased  person  where  a  term  has  inter- 
vened since  his  death.  All  that  these  continuances  can  effect,  is  to 
j)revent  the  judgment  from  expiring,  so  as  to  obviate  the  necessity 
of  a  scire  facias  against  a  party  to  the  judgment.  If  judgment  is 
recovered,  and  the  deft,  dies  in  one  month  afterwards,  if  a  term  is 
f;uffered  to  elapse,  so  that  the  execution  must  be  tested  after  his  death, 
f,uch  execution  would  be  irregular;  for  the  rule  is,  that  when  a  new 
])erson,  who  was  not  a  party  to  a  judgment,  derives  benefit  by,  or  be- 
comes chargeable  to,  the  execution,  there  must  be  a  sci.  fa.  to  make 
liim  a  party.  2  Saund.  6,  n.  1;  1  Lord  Raymond,  245;  1  Salh. 
319-20;  2  Lord  Raymond,  7G8;  2  Inst.  471.  So  when  the  deft 
dies  in  term  time  and  execution  is  taken  out  immediately  after  the 
term,  yet  as  it  is  necessary  to  test  the  execution  as  of  the  last  day  of 
the  term,  a  day  posterior  to  the  death  of  deft.,  a  scire  facias  is  neces- 


22  Lambden's  Ex'r.  vs.  Nohris. 

sary  to  revive  the  judgment  against  the  administrator.  6  T.  Rep.  368. 
Lord  Kenyon  in  this  ease  says  '  great  injustice  may  be  done  to  cred- 
itors if  we  permit  the  execution  to  stand.'  The  plfE.  should  have 
sued  out  a  scire  facias  to  revive  the  judgment  against  the  deft's.  ex- 
ecutor. The  moment  a  party  is  dead,  the  rights  of  his  creditors  are 
fixed.  An  execution  once  begun  should  proceed.  I  understand  by 
this,  that  where  chattels  or  other  property  are  seized  in  execution,, 
you  may  proceed  to  complete  the  execution  at  any  time  after,  and 
that  the  death  of  neither  plff.  nor  deft,  will  stop  the  execution.  But 
1  have  met  with  no  case  where  you  can  take  out  execution  which 
must  be  tested  after  the  death  of  the  plfE.  or  deft.  A  scire  facias  is 
necessary  in  every  such  case.  But  the  case  under  consideration  is 
free  from  all  difficulty.  An  execution  was  issued  in  the  lifetime  of 
Masten  and  completed.  No  benefit  it  is  true,  was  derived  from  that 
execution.  About  two  years  and  a  half  after  his  death,  and  proba- 
bly after  the  goods  were  all  administered,  an  alias  fi.  fa.  issued 
against  the  dead  man,  commanding  the  constable  to  levy  the  debt  of 
his  goods  and  chattels,  and  for  want  of  such  goods  and  chattels  to 
take  his  body,  and  commit  him  to  the  common  jail  of  the  county. 
Justices  of  the  peace  have  no  stated  terms;  all  their  process  is  con- 
tinued by  adjournment  to  a  special  day ;  the  fiction  of  '  continuance* 
upon  the  roll '  cannot  exist,  because  it  is  not  possible.  The  law  will 
not  suppose  any  thing  which  is  not  possible.  There  had  been  there- 
fore, in  tliis  case,  no  continuance  of  the  execution  for  more  than  two 
years  after  the  death  of  Masten,  nor  could  there  in  the  nature  of 
things,  be  such  a  continuance.  Every  execution  from  a  justice  takes 
effect  from  its  date;  it  has  no  relation  to  a  prior  time;  and  in  no 
case  can  an  execution  issue  against  a  deft,  after  his  death.  This  i» 
contemplated  by  the  Act  of  Assembly,  (Digest  347).  A  judgment 
does  not  expire  under  three  years,  unless  the  deft,  dies  within  that 
time;  and  in  such  case,  a  sci  fa.  is  necessary.  If  execution  be  sued 
out  after  a  year  and  a  day  without  a  scire  facias,  it  is  not  void,  but 
voidable  only  by  writ  of  error.  2  Saund.  6,  n. ;  3  Lev.  404;  1 
Salk.  261.  A  certiorari  is  more  extensively  remedied  than  a  writ 
of  error. 

The  alias  fi.   fa.  is  irregular,  and  the  proceedings  must  be  re- 
versed." 

Black  and  Hobinson,  Justices,  concurring. 

Judgment  of  reversal. 

Frame  for  plff.  in  error. 

Johnson  for  deft,  in  error. 


MATTHEW  B.  BOYER,  Ex'r.  of  THOS.  LAMBDEN,  deceased  vs, 
RICHARD  NORRIS. 

The  proper  proof  of  a  sealed  instrument  is  by  the  attesting  witness,  or  by  proof 

of  his  handwriting  if  he  be  dead,  &c. 
Proof  of  the  handwriting  of  the  obligor  is  not  sufficient. 

Debt  on  single  bill.    Pleas,  non  est  factum,  payment  and  set  off. 
Replications  generally  and  specially,  and  issue. 


State  use,  &c.  vs.  Tekue-tenants  of  P.  Eeading.  23 

The  plff.  not  being  able  to  prove  the  handwriting  of  the  subscrib- 
ing witness,  offered  to  prove  the  handwriting  of  the  obligor;  which 
the  defendant  objected  to. 

Per  Curiam. —  This  evidence  is  not  competent.  You  must  first 
prdve  the  handwriting  of  the  subscribing  witness  if  he  be  dead,  or 
insane,  or  infamous.  It  is  not  sufficient  to  prove  the  handwriting  of 
the  obligor.  This  is  permitted  only  where  the  witness  does  not  recol- 
lect being  present  at  the  time,  or  did  not  attest  the  execution  of  the 
in  srt  rumen  t. 

The  plff.  was  nonsuited. 

Bates  for  plff.    Huifington  for  deft. 


THE  STATE,  use  of  ELIZA  HEADING'S  Adm'r.  vs.  The  terre- 
tenants  of  PHILIP  READING,  deceased. 

Proof  of  facts  amounting  to  a  payment  or  discharge  in  law,  does  not  support  a 

])lea  of  actual  payment. 
Evidence  of  a  bond  to  Sarah  Eliza  R.  does  not  support  the  averment  of  a  bond 

1o  Eliza  R. 
The  admissions  of  a  party  having  a  community  of  interest  with  the  other  defts. 

are  evidence  against  all. 

Scire  facias  on  a  recognizance  in  the  Orphans'  Court. 

This  was  an  action  of  scire  facias  on  a  recognizance  entered  into  in 
the  Orphans'  Court  of  Newcastle  county,  by  Philip  Reading,  on  the 
leth  Sept.  1813,  in  $28,770  36,  conditioned  to  pay  to  the  other 
children  of  Philip  Reading,  deceased,  or  their  legal  representatives 
tlieir  respective  shares  of  $14,385  18,  the  appraised  value  of  the 
lands  of  said  Philip  Reading,  deceased,  with  interest  from  25th  June, 
1813,  in  instalments.     The  defts.  pleaded  — 

First  plea.  (Payment.)  Executio  non  —  "because  (protesting 
that  the  said  writ  of  scire  facias  is  not  directed  nor  issued  against  the 
heirs  nor  representatives  of  the  said  P.  R.,  the  recognizor,  nor  hath 
any  writ  of  sci.  fa.  issued  or  been  sued  on  said  recognizance,  against 
the  heirs  or  representatives  of  the  said  P.  R.,  and  that  the  return 
made  by  the  sheriff  to  the  said  writ  of  sci.  fa.  is  ill,  and  of  no  effect 
against  the  defts.,  the  said  sheriff  not  having  returned  that  they,  or 
either  of  them  are  seized,  possessed,  or  are  terre-tenants  of  any  or 
wliat  lands  within  his  bailiwick,  or  in  the  county  of  Newcastle,  which 
W(Te  of  the  said  P.  R.  on  the  said  16th  Sept.  1813,  or  at  any  time 
since,  nor  that  they  are  tenants  of  all  the  lands  in  his  bailiwick,  or  in 
the  county  of  Newcastle,  which  were  of  the  said  P.  R.  on  the  said 
Kith  of  Sept.  or  at  any  time  since;)  they  say,  that  the  said  P.  R., 
after  the  said  16th  Sept.  A.  D.  1813,  and  after  the  times  of  payment 
iji  the  said  condition  mentioned,  and  before  the  commencement  of 

tliis  suit,  to  wit:  on  the day  of  ,  A.  D.  18 — ,  at  New- 

(^astle  county  aforesaid,  paid  to  the  other  children  of  P.  R.  deceased, 
their  equal  and  proper  shares  of  $14,385  18  in  the  said  condition 
mentioned,  together  with  all  interest  then  due  thereon,  according  to 
the  form  and  effect  of  the  said  condition  of  the  said  recognizance; 
and  this  they  are  ready  to  verify,  wherefore  they  pray  judgment." 


24  State  use,  &c.  vs.  Terre-tenants  of  P.  Reading. 

Second  plea.  {Accord  and  satisfaction.)  And  for  a  further 
plea  in  this  behalf,  executio  non,  &c.,  "  because  (protesting  as  afore- 
said,) they  say  that  the  said  P.  Reading,  the  recognizor,  after  the 
said  16th  Sept.  A.  D.  1813,  and  after  the  days  and  times  of  payment 
in  the  said  condition  mentioned,  and  before  the  commencement  of 
this  suit,  to  wit :  on  the  3d  of  April,  A.  D.  1819,  at  Newcastle  county 
afs'd.  made  and  sealed,  and  as  his  act  and  deed  delivered  to  the 
said  Eliza  Reading  then  in  full  life,  one  of  the  other  children  of 
P.  Reading,  deceased,  and  for  the  use  of  whose  adm'r.  this  suit  is 
brought,  his,  the  said  P.  Reading,  the  recognizors,  certain  writing 
obligatory  in  the  penal  sum  of  $6,000,  of  lawful  money  of  the  TJ. 
States;  conditioned  for  the  payment  of  $3,000  of  like  lawful  money, 
and  interest  for  the  same,  hy  the  said  P.  Reading  to  the  said  Eliza, 
at  a  certain  time  therein  mentioned  and  now  elapsed,  with  warrant 
of  attorney  to  confess  judgment  thereon,  and  which  said  writing  oblig- 
atory the  said  1*.  R.  then  and  there  delivered  to  the  said  Eliza,  who 
caused  judgment  to  be  entered  on  said  bond  against  the  said  Philip, 
in  the  Court  of  Common  Pleas  of  the  state  of  Delaware,  at  Newcastle 

in  said  county,  on  the  5th  of  April,  A.  D.  1819,  as  of  the term 

of  the  said  court,  in  the  same  year  last  afs'd.,  for  the  real  debt  of 
$3,000  with  interest  from  the  3d  day  of  April,  in  the  same  year  as 
afs'd.,  with  stay  of  execution  until  the  3d  day  of  May,  A.  D.  1819,  as 
by  the  record  and  proceedings  thereof,  still  remaining  in  the  said 
Court  of  Common  Pleas,  more  fully  and  at  large  appears ;  which  said 
judgment  still  remains  in  full  force  and  effect;  and  the  said  Eliza 
then  and  there  accepted  and  received  as  afs'd.,  said  bond  and  warrant 
of  attorney  from  the  said  Philip,  and  entered  judgment  thereon  as 
afs'd.,  in  full  satisfaction  and  discharge  of  her,  the  said  Eliza's  pro- 
portionable share  of  the  said  recognizance,  and  of  all  damages  and 
sums  of  money  thereupon  due  and  owing,  or  accrued;  and  this  they 
are  ready  to  verify,  wherefore  they  pray  judgment."  Wales  pro 
deft. 

The  following  plea  was  added,  by  leave  of  the  court. 

Third  plea.  {A  special  plea  of  payment  out  of  a  particular 
fund.)  Executio  non  —  "because  they  say  that  after  the  16th  of 
Sept.  A.  D.  1813,  in  the  said  recognizance  mentioned,  and  before 
the  commencement  of  this  suit,  the  amount  due  to  the  said  state  of 

Delaware  for  the  use  of  the  said ,  by  virtue  of  the  said 

recognizance,  was  paid  and  satisfied  by  the  said ,  out- 

of  the  sales  of  the  real  estate  of  the  said  William  Price,  one  of  the 
recognizors  afs'd.,  made  by  the  sheriff  of  Newcastle  county,  by  vir- 
tue of  a  ^Tit  of  levari  facias.  No.  — ,  to  the  March  term  of  the  Su- 
perior Court  of  Newcastle  county,  in  the  year  1819,  issued  at  the  suit 

of ;  and  also  by  virtue  of  a  writ  of  vinditioni  exponas, 

No.  — ,  to  Nov.  term  of  the  said  court  for  the  year  last  af'sd.,  is- 
sued at  the  suit  of  the  said ;  and  this  the  said • 

,  are  ready  to  verify;  wherefore,  they  pray  judgment,  &c.** 

"Rogers  pro  deft. 

Replications  and  issues. 

The  plff.  exhibited  the  letters  of  administration  on  the  estate  of 
Eliza  Reading;  the  recognizance  of  Philip  Reading;  the.  valuation 


State  use,  &c.  vs.  Terre-tenants  of  P.  Eeading.  25 

of  the  real  estate  of  Philip  Reading,  deceased;  the  share  of  Eliza 
Heading  $2,877  03,  and  he  rested. 

Wales  for  defts. 

Eliza  Reading  was  the  youngest  child.  She  came  of  age  in  1818. 
In  1819,  a  family  arrangement  was  entered  into  by  which  Phijip 
]?eading  gave  his  judgment  bond  to  each  of  the  heirs  in  discharge  of 
their  shares,  and  in  full  satisfaction  of  the  recognizance.  During  all 
her  life  Eliza  Reading  rested  satisfied  with  this  arrangement,  and  set 
up  no  claim  on  the  recognizance.  The  land  of  William  Price,  one 
of  the  recognizors,  was  sold  by  the  sheriff;  and,  we  contend,  that 
this  sale  was  in  law  a  satisfaction  of  the  recognizance;  the  sheriff 
being  bound  by  law  to  apply  the  proceeds  of  the  sale  to  it.  Exhibits 
n  judgment,  Sarah  Eliza  Reading  vs.  Philip  Reading,  for  the  real 
debt  of  $3,000,  interest  from  3d  April,  1819 ;  entered  5th  April  1819. 

Offers  in  evidence  a  bond  from  Philip  Eeading  to  Sarah  Eliza 
Reading,  on  which  this  judgment  was  entered.  Objected  to.  Depo- 
$>ition  of  the  attesting  witness  read. 

Objection.  The  plea  alledges  a  bond  to  Eliza  Reading;  the  bond 
offered  in  evidence  is  a  bond  to  Sarah  Eliza  Reading,  and  does  not 
fiupport  the  plea. 

Mr.  Rogers  for  defts.  The  averment  in  the  plea  is  nothing  more 
i;han  that  Philip  Reading  delivered  a  bond  to  Eliza  Reading,  and  not 
that  the  bond  was  to  Eliza  Reading  by  that  name. 

Mr.  Wales  for  defts.  The  gist  of  the  plea  is,  that  a  certain  bond 
(ixecuted  by  Philip  Reading,  was  accepted  by  Eliza  Reading  in  satis- 
faction of  her  share  of  the  recognizance.  We  offer  this  bond  to  sup- 
port this  plea,  and  it  matters  not  to  whom  it  was  given,  so  that  it 
was  delivered  to,  and  accepted  by,  Eliza  Reading  in  satisfaction  of 
the  recognizance. 

The  Court.  This  plea  purports  to  set  out  an  obligation  from 
Philip  Reading  to  Eliza  Reading.  Such  a  description  was  necessary, 
't>ecause  an  obligation  from  Philip  Reading  to  nobody,  would  be  a 
nullity.  The  bond  offered  in  evidence  is  to  Sarah  Eliza  Reading, 
which  is  a  fatal  variance.  Where  an  instrument  is  set  out  in  a  narr 
or  plea,  it  must  be  accurately  described,  and  the  proof  support  it  ac- 
curately.    3   Stark.   Ev.   1588.     Strange  787.     Bond  rejected. 

The  deft,  then  offered  in  evidence,  a  statement  of  judgments  against 
William  Price,  a  surety  in  this  recognizance,  and  the  process  upon 
them,  and  the  sales  of  Price's  lands,  to  support  his  third  plea.  Ob- 
jected to. 

Mr.  J.  A.  Bayard. —  Under  this  plea  the  deft,  can  show  nothing 
but  an  actual  payment,  or  application  of  the  proceeds  of  the  sales  to 
the  recognizance.  The  plea  is,  that  we  were  actually  paid  out  of  this 
fund,  and  the  fact  that  the  sales  were  sufficient  and  legally  applicable 
t,o  this  recognizance,  is  not  sufficient  without  showing  the  application 
of  them. 

Mr.  Rogers. —  We  don't  intend  to  prove  any  thing  more  by  this 
paper  than  the  existence  of  the  judgments  and  writs,  and  the  sale  by 
the  sheriff. 


Jffj         State  use,  &c.  vs.  Terre-tenants  qf  P.  Reading. 

This  was  not  objected  to,  and  they  were  admitted  for  the  purpose 
of  raising  the  question  whether  they  supported  the  plea.  The  amount 
of  sales  of  Price's  land  applicable  to  this  recognizance  was  $1,634  50. 

Bayard. —  The  plea  is  a  plea  of  payment,  actual  payment.  The 
proof  is  of  a  legal  payment;  a  payment  by  operation  of  law,  and  is 
not  admissible  under  this  plea. 

The  Court. —  This  is  a  general  plea  of  payment;  out  of  a  particu- 
lar fund  it  is  true,  but  that  does  not  vary  the  case.  It  does  not  state 
the  facts  so  that  the  court  may  say  whether  in  law  they  amount  to  a 
payment.  A  plea  of  actual  payment  is  not  supported  by  evidence 
of  a  legal  payment.  This  is  the  case  of  a  debt  discharged  by  opera- 
tion of  law  according  to  the  proof,  rather  than  of  a  payment  as 
alledged  by  the  plea.  We  therefore  think  the  evidence  inadmis- 
sible. 

The  plff.  in  reply,  offered  in  evidence  the  answer  of  Peterson 
Reading,  one  of  the  terre-tenants  in  this  case,  to  a  bill  in  Chancery. 
Objected  to. 

Rogers. —  Peterson  Reading  is  only  a  terre-tenant.  His  connec- 
tion as  one  of  the  heirs  of  Philip  Reading  does  not  appear.  He  may 
not  be  at  all  interested  here,  yet  his  admission  is  offered  in  evidence 
to  bind  all  the  defts. 

Bayard. —  By  this  reasoning  we  might  have  the  separate  admis- 
sion of  each  deft,  and  yet  could  produce  no  evidence  against  any. 
They  can't  take  advantage  of  their  mode  of  pleading  jointly,  so  as  to 
exclude  the  separate  admissions  of  each. 

Wales. —  The  difficulty  arises  from  the  improper  service  of  the 
original  process.  This  is  a  proceeding  against  the  land,  and  yet  the 
defts.  are  summoned  personally.  T  can't  see  how  they  could  plead 
noTi  tenure. 

The  Court. —  The  rule  is  clear  that  the  admissions  of  a  party  are 
evidence  against  him ;  and  can  the  mode  of  the  deft's.  pleading  in  this 
case,  deprive  the  plff.  of  his  right  to  this  testimony?  The  English 
rule  is,  that  you  i;nust  make  the  heir  a  party ;  but  the  practice  is  dif- 
ferent here.     We  always  issue  our  sci.  fa.  against  the  terre-tenants. 

Note.  The  inclination  at  first  Avas  to  confine  the  effect  of  this 
answer  to  the  deft.  Peterson  Reading;  at  present,  the  court  directed 
it  to  be  read,  leaving  any  opinion  as  to  its  application  for  charge  to 
the  jury.  Upon  examination  of  this  question  the  opinion  of  all  the 
court  was,  that  the  answer  of  Peterson  Reading  is  evidence  against 
all  the  terre-tenants,  oti  the  principle  of  the  admission  of  a  party 
having  a  community  of  interest  with  the  other  parties.  2  StarTcie 
Ev.  44. 

Mr.  Booth  for  plff.,  to  the  jury,  stated  his  claim  to  be  $6,135  70 
principal  and  interest. 

Charge  of  tlie  court  to  the  jury. 

Clayton,  C.  J. —  This  is  an  action  of  scire  facias  on  a  recog- 
nizance in  the  Orphans'  Court,  on  the  acceptance  of  intestate  lands. 
The  record  of  the  recognizance  is  sufficient  evidence  of  the  plff's. 
claim,  unless  it  has  been  discharged.     The  pleas  are  pa3Tnent,  ac- 


M'DowELL  VS.  Bank  of  W.  &  Braxdywine.  27 

cord  and  satisfaction,  and  payment  out  of  the  sales  of  lands  of  Wil- 
liam Price,  one  of  the  sureties  in  the  recognizance.  No  evidence 
has  been  offered  under  the  first  plea.  The  second  plea  is,  that 
*■  Philip  Eeading  executed  and  delivered  his  bond  to  Eliza  Reading, 
•\7hich  was  received  in  full  satisfaction  and  discharge  of  the  recog- 
nizance.'^ The  evidence  is  of  a  bond  to  Sarah  Eliza  Reading,  which 
does  not  support  this  plea.  We  are  not  aware  that  there  is  any  evi- 
dence that  this  bond  was  accepted  in  satisfaction  of  the  recognizance ; 
find  there  must  be  both  accord  and  satisfaction  to  support  this  plea. 
The  other  plea  is  of  a  payment  out  of  the  sales  of  William  Price's 
lands.  The  evidence  is,  that  the  lands  of  Price,  bound  by  this  recog- 
nizance, were,  sold  by  the  sheriff,  the  proceeds  of  which  sale,  or  a 
part  of  them,  the  defts.  contend,  were  legally  applicable  to  this  recog- 
nizance, and  ought  to  have  been  applied  to  it.  This  is  not  a  pay- 
ment. If  the  facts  had  been  stated  in  a  special  plea,  it  might  have 
been  a  discharge  of  the  recognizance  pro  tanto;  but  under  this  plea 
they  are  inadmissible. 

Verdict  for  plff.  for  $6,135  70. 

Booth  and  J.  A.  Bayard  for  plff. 

Wales  and  Rogers  for  defts. 

(Note.  The  facts  relied  on  in  support  of  this  last  plea  if  properly 
pleaded,  would  have  brought  up  the  question  decided  in  the  High 
Court  of  Errors  and  Appeals  in  the  case  of  Vickery  vs.  Yickery. 
'3."'he  decision  there  was  that  a  sale,  by  the  sheriff,  of  lands  bound  by 
a  recognizance  in  the  Orphans'  Court,  operated  as  a  discharge  of  the 
recognizance,  -pro  tanto.) 


SAMUEL  M'DOWELL  vs.  THE  PRES.  D.  &  CO.  of  the  BANK  of 
WILMINGTON  and  BRANDYWINE. 

A  By-Law  giving  the  bank  a  lien  on  stock  for  the  debts  of  the  holder  is  valid, 
Ihe  discharge  of  an  indorser  by  the  acts  of  the  holder  cannot  be  set  up  at  Uuo 
after  judgment. 

Summons  case.  Plea,  Not  guilty,  with  leave,  &c.  Reps,  and 
Issue. 

This  was  an  action  of  trespass  on  the  case  against  the  bank,  for  re- 
f  asing  to  permit  the  plff.  to  transfer  bank  stock  on  the  books  of  the 
bank. 

Narr.  Plff.  complains,  &c.  "  For  that  whereas  the  said  Samuel 
:M'Dowell  before,  and  at  the  times  of  committing  the  grievances  in 
the  first,  second  and  third  counts  of  this  declaration,  mentioned  was 
possessed  of,  and  lawfully  entitled  to,  a  certain  share  or  interest,  to 
vit :  thirty-six  shares  in  the  capital  or  joint  stock  of  the  Bank  of  Wil- 
mington and  Brandywine,  of  the  value  of  $1,080,  then  standing  in 
the  name  of  the  said  S.  M'Dowell,  and  transferable  by  him  in  per- 
S(m  or  by  his  attorney,  legally  appointed,  at  the  banking-house  of 
tlie  said  defts.,  on  the  books  of  the  said  defts.,  by  them  kept  for  that 
purpose,  to  wit:  at  the  county  af s'd. ;  and,  thereupon,  by  reason  of 
tlie  premises  in  this  count  mentioned,  it  became  and  was  the  duty 


28  M'DowELL  vs.  Bank  of  W.  &  Beandywine. 

of  the  said  defts.,  to  permit  the  said  S.  M'Dowell,  in  his  proper  per- 
son, or  by  his  attorney  legally  appointed,  to  transfer  his  said  share 
or  interest  in  the  said  capital  or  joint  stock  in  the  said  books  of  the 
said  defts.  to  any  person  or  persons  whatsoever:  And  whereas  also, 
just  before  and  at  the  time  of  committing  the  grievances  hereinafter 
next  mentioned,  the  said  S.  M'Dowell  did  sell  and  dispose  of  his 
said  interest  or  share,  to  wit:  thirty-six  shares  in  the  said  capital 
or  joint  stock  to  one  Robert  Porter,  of  the  county  afs'd.,  and  after 
the  said  sale,  to  wit:  on  the  24th  Jan.  A.  D.  1829,  at  the  county 
afs'd.,  did  appear  in  his  proper  person,  and  present  himself  at  the 
banking  house  of  the  said  defts.,  for  the  purpose  of  then  and  there 
transferring  his  said  interest  or  share  in  the  said  capital  or  joint  stock 
to  the  said  R.  Porter,  in  the  books  of  the  said  defts.,  by  them  kept 
for  that  purpose,  and  the  said  S,  M'Dowell  did  then  and  there  re- 
quest the  said  defts.  to  permit  him  to  transfer  his  said  interest  or 
share  in  the  said  capital  or  joint  stock  to  the  said  R.  Porter;  yet  the 
said  defts.  well  knowing  the  premises,  but  contriving  and  intending 
wrongfully  and  unjustly  to  injure  and  damnify  the  said  S.  M'Dowell, 
did,  to  wit :  on  &c.  at  &c.,  contrary  to  their  duty,  wrongfully  and  un- 
justly refuse  to  permit  the  said  S.  M'Dowell  in  his  proper  person, 
to  transfer  his  share  or  interest  in  the  said  capital  or  joint  stock  to 
the  said  R.  Porter,  at  their  said  banking-house;  by  means  of  which 
said  several  premises,  the  said  S.  M'Dowell  was  unable  to  complete 
and  was  obliged  to  rescind  the  said  sale  of  his  said  interest  or  share 
in  said  capital  or  joint  stock,  to  the  said  R.  Porter,  and  lost  and  was 
deprived  of  the  interest,  gains,  profit,  benefit  and  advantage,  which 
he  would  otherwise  have  derived  and  acquired,  from  the  sale  of  the 
said  capital  or  joint  stock  to  the  said  R.  Porter,  and  from  the  pur- 
chase money  which  he  would  have  received  therefor,  to  wit:  at  &c." 

The  second  count  stated  an  agreement  to  sell  to  R.  Porter,  instead 
of  an  actual  sale,  and  then  the  request  to  transfer,  and  refusal. 

Third  count.  That  plff.  being  possessed,  &c.,  and  being  desirous 
to  transfer  the  said  stock,  applied  to  the  bank,  &c.,  and  the  refusal, 
&c.    Damages  at  $1,000.    J.  A.  Bayard,  pro  quer. 

The  proof  established  ihat  plff.  was  the  owner  of  thirty-six  shares 
of  the  stock ;  that  he  became  the  indorser  of  a  note  drawn  by  Thomas 
M'Dowell  and  discounted  by  the  bank,  which  is  still  unpaid.  Th*' 
bank  has  obtained  judgment  on  this  note  against  both  th^  drawer  and 
indorser.  The  request  of  plff.  to  be  permitted  to  transfer  his  stock, 
and  the  refusal  of  the  bank  were  proved.  It  was  also  proved,  that 
the  bank  had  entered  into  an  arrangement. with  Thomas  M'Dowell, 
the  drawer  of  the  note,  who  is  a  Notary  Public,  that  he  should  do 
the  protesting  of  the  bank,  and  that  a  portion  of  his  fees  should  be  at 
stated  times,  applied  towards  the  note.  The  sum  so  paid,  has  not 
been  sufficient  to  keep  down  the  interest.  Thomas  M'Dowell  has 
had  extensive  deposits  in  bank  since  the  note  fell  due,  and  the  bank 
has  permitted  him  from  time  to  time,  to  check  them  out. 

Wales,  for  deft. 

By  the  showing  of  the  plff.  it  now  appears  that  this  is  the  case  of 
a  creditor  refusing  to  allow  his  debtor  to  take  out  of  his  hands  a  fund 
which  he  had  a  right,  according  to  the  principles  of  justice,  to  retain 


M'DowELL  VS.  Bank  of  W.  &  Brandywine.  29 

in  part,  satisfaction  of  his  debt.  The  plff.  as  holder  of  this  stock,  was 
a  member  of  an  association  which  had  delegated  to  a  certain  body  of 
directors,  the  power  of  making  laws  for  the  government  of  that  asso- 
ciation. The  directors  have  made  a  by-law  that  no  stockholder 
should  transfer  his  stock  while  he  was  a  debtor  to  the  bank.  The 
question  then  is,  is  this  by-law  valid  ?  Is  it  reasonable ;  is  it  conform- 
able to  the  constitution  of  the  state  and  the  laws  thereof?  Art.  5. 
Directors  authorized  to  make  by-laws.  Art.  7.  The  shares  of  stock 
to  be  transferrable  as  the  directors  by  by-law  shall  direct.  In  Feb. 
1836,  the  board  passed  a  by-law,  that  no  stockholder  indebted  to  the 
bank,  should  sell  or  transfer  his  stock  while  so  indebted.  Judgment 
of  the  bank  against  plff.,  April  7,  1819,  for  $541  16,  which  is  still 
due  and  unsatisfied. 

Bayard  for  the  plff.  to  the  jury. 

The  bank  suffered  the  maker  of  this  note,  Thomas  M'Dowell,  to 
draw  out  of  its  hands  funds  sufficient  to  pay  off  the  note,  which  we 
shall  contend,  under  the  direction  of  the  court,  is  a  discharge  of  the 
indorser.  4  Vesey,  824.  Law  vs.  East  India  Co.  Payment  of 
money  by  a  creditor  to  the  principal  debtor  after  the  debt  is  due,  is 
a.  discharge  of  the  surety.  AVhere  the  principal  has  left  a  sufficient 
fund  in  the  hands  of  the  creditor  and  he  pays  it  over,  it  discharges 
i;he  surety.  These  deposits,  what  were  they?  A  debt  due  from  the 
"bank  to  Thomas  M'Dowell.  In  an  action  for  them  their  own  note 
(;ouid  have  been  set  off;  and  if  they  could  set  it  off,  they  could  re- 
c;ain  it  and  were  bound  to  do  so,  or  the  surety  is  discharged.  15 
Vesey,  577.  The  cash  deposits  are  much  larger  than  the  note  and 
interest. 

Second.  The  bank  entered  into  a  new  engagement  with  the  drawer 
for  the  payment  of  this  note,  and  this  discharged  the  indorser  or 
surety.  But  we  contend,  that  the  bank  had  no  right  to  prevent  the 
transfer  of  this  stock,  even  if  S.  M'Dowell  was  indebted  to  them. 
The  bank  has  no  more  right  to  establish  a  rule  that  they  will  hold  on 
i.o  the  stock  of  their  debtors,  than  they  would  have  to  pass  a  by-law 
that  execution  should  issue  at  once  against  their  debtors  without 
judgment.  This  by-law  is  repugnant  to  the  laws  of  the  state.  The 
general  law  gives  no  lien  except  by  contract  as  by  hypothecation. 
This  b3'-law  undertakes  to  give  the  lien  without  contract.  Growing 
liens,  are  always  to  be  discouraged.    7  East,  224-8. 

Rogers,  for  deft. 

The  plff.  contends  that  there  was  an  agreement  between  the  bank 
and  the  drawer,  which  discharged  the  indorser.  I  have  never  heard 
such  a  parol  agreement  set  up  to  discharge  a  written  obligation.  But 
this  is  not  the  case  of  drawer  and  indorser.  Judgment  has  been  ob- 
tained against  both  the  M'Dowells,  and  they  stand  as  principals. 
Even  in  a  joint  and  several  bond  all  are  principals.  But  such  an 
f  greement  as  this  would  not  even  discharge  an  indorser.  The  same 
f  nswer  applies  to  the  other  objection,  that  deft,  permitted  Thomas 
M'Dowell  to  check  out  his  deposits;  and  in  addition,  that  if  they 
sustained  the  relation  of  drawer  and  indorser,  the  indorser  has  no 
right  to  require  the  holder  to  retain  general  deposits.  T  admit  the 
light  of  the  bank  to  do  so,  but  not  its  duty. 


80  M'DowELL  vs.  Bank  of  W.  &  Beandywink. 

The  Court  stopped  the  deft's.  counsel  on  this  point.  We  under- 
stand the  question  to  be,  whether  this  judgment  can  be  discharged 
in  a  court  of  law  by  matter  in  pais.  Supposing  that  the  agreement 
here  made  with  Thomas  IVl'Dowell,  or  the  conduct  of  the  bank  in 
pennitting  him  to  withdraw  deposits  would,  as  between  principal 
and  surety,  oi*  drawer  and  mdorser,  discharge  the  surety  or  indorser, 
(and  we  incline  to  the  opinion  that  they  would,  especially  the  first,) 
can  this  be  matter  of  defence  in  a  court  of  law  ?  We  are  clearly  of 
opinion  that  it  cannot  be  set  up  at  law.  It  cannot  be  pleaded  in  dis- 
charge of  the  judgment,  but  can  avail  only  as  an  equitable  defence  in 
a  court  of  equity.  See  the  case  of  Butler  vs.  Jarrold,  recognized 
in  the  case  of  Bradun  and  Rice,  in  the  Court  of  Errors  and  Appeals, 
but  distinguished  from  that  case.  We  will,  of  course,  hear  the  other 
side  on  this  question.  3  Stark.  Ev.  1389;  8  Price,  469;  5  Bam.  and 
Aid.  187. 

Rogers,  proceeds.  The  by-law  is  a  valid  one.  It  is  made  in  con- 
formity with  the  articles  of  association  by  which  the  plff.  as  one  of 
the  corporators,  agreed  to  submit  to  such  regulations  as  the  directors 
should  make  in  relation  to  this  matter.  It  is  authorized  by  the  char- 
ter, and  not  repugnant  to  the  laws  of  the  state,  nor  the  constitution. 

Wales,  on  the  same  side. 

The  power  of  making  by-laws  is  incident  to  a  corporation  without 
express  grant,  and  it  may  be  delegated.  This  is  a  reasonable  by-law ; 
highly  beneficial  to  the  corporation,  and  a  safeguard  to  the  corpora- 
tors. The  liability  to  such  a  by-law  was  one  of  the  terms  of  the  ori- 
.  ginal  subscription ;  a  part  of  the  agreement ;  and  the  present  holder 
takes  the  stock,  subject  to  the  terms  of  the  original  subscription.  It 
is  a  principle  of  all  partnerships,  that  tlie  partnership  funds  shall  be. 
first  applicable  to  the  partnership  debts,  and  this  banking  institution 
i«  nothing  more  than  a  partnership  for  banking  purposes. 

In  some  acts  of  incorporation  this  rule  is  expressly  contained;  in 
the  Bank  of  Maryland  and  Bank  of  Alexandria,  it  is  so.  It  is,  there- 
fore, not  repugnant  to  the  constitution.  Nor  is  it  repugnant  to  the 
laws  of  the  state;  there  is  nothing  in  it  either  against  public  policy, 
or  oppressive  or  unreasonable;  nothing  that  deprives  any  one  of  a 
legal  right  which  may  not  be  controlled  by  his  contract.  It  is  not 
necessary  that  these  Jsy-laws  should  be  published  to  bind  the  corpo- 
rators, for  they  have  access  to  the  books,  and  are  presumed  to  know 
them.  I  submit  then  that  this  by-law  is  reasonable;  usefid,  both  to 
t!ie  corporators  and  the  corporation;  necessary,  indeed,  for  the  secu- 
rity of  the  partnership ;  and  that  it  is  not  repugnant  either  to  the  con- 
stitution or  laws  of  the  state.  It  is  moreover,  for  the  public  benefit, 
as  it  facilitates  the  making  of  loans  by  increasing  the  security. 

Read,  Jr.,  for  plff.  in  reply. 

First,  as  to  the  discharge.  Can  it  be  set  up  at  law?  The  judg- 
ment in  this  case  is  not  directly  in  controversy,  it  comes  incidentally 
in  question.  This  is  an  action  on  the  case;  the  plea,  not  guilty. 
The  judgment  against  an  indorser  does  not  change  the  relation,  the 
relation  of  principal  and  surety  as  between  him  and  the  drawer  still 
subsists.  If  he  pays  off  the  judgment,  he  is  entitled  to  an  assign- 
ment.     (Hardcastle  vs.  The  Commercial  Bank,  post.    )      Altering 


M'DowELL  VS.  Bank  of  W.  &  Bkandyavine.  31 

the  mode  of  pajinent  is  a  discharge  of  the  indorser,  and  can  the  judg- 
Dient  alter  this  ? 

Second,  the  by-law.  This  must  be  supported,  if  at  all,  on  the 
ground  of  lien.  Liens  are  by  custom  or  agreement.  It  is  not  known 
to  the  law  as  a  customary  lien,  and  it  must  rest  on  the  footing  of 
agreement.  With  regard  to  all  such  liens  the  rule  is,  that  the  know- 
hAge  of  the  lien- must  be  brought  home  to  the  party.  I  refer  to  a 
case  in  6  Term.  Rep.  (The  linen  bleacher's  case.)  These  by- 
laws are  private;  not  printed  or  published,  as  those  of  other  banks 
are ;  the  Farmers'  Bank  for  instance.  It  could  not  be  known  to  the 
p]ff.  It  is  a  peculiar  one;  not  known  in  any  other  bank  of  this  state. 
It  is  repugnant  to  the  laws  of  the  state.  What  was  the  law  in  rela- 
tion to  bank  stock  when  this  charter  was  granted  ?  That  it  could  not 
be  taken  in  execution,  attached  or  affected  by  legal  process.  A  law 
has  since  been  passed,  making  the  stock  liable  to  be  taken  in  payment 
of  debts.  Xow  if  it  required  an  act  of  assembly  to  do  this,  is  it  pos- 
sible that  this,  and  more  than  this,  could  be  done  by  a  private  rule  of 
a  petty  corporation?  It  is  repugnant  also,  because  it  is  a  summary 
remedy,  unknown  to  the  law,  subjecting  the  owner  of  stock  to  what 
is  equivalent  to  execution  process,  without  suit  or  judgment.  It  is 
against  policy,  because  it  stops  the  transfer  of  personal  property,  and 
locks  up  this  species  of  property,  which  should  be  the  most  transfer- 
rable;  and  it  is  partial,  unjust  and  arbitrary;  leaving  a  discretion  to 
directors  to  transfer,  to  enforce,  or  suspend  it  at  pleasure. 

By  the  Court. —  The  first  question  in  this  case  is,  was  Samuel 
^tl'Dowell,  in  Jan.  1819,  indebted  to  the  bank?  This  includes  a 
Cjuestion  of  law.  The  plff.  indorsed  a  note  to  deft's.  on  failure  to 
pay  which,  he  became  liable  as  the  indorser.  Suit  has  been  brought 
and  judgment  obtained  against  him  on  this  responsibility.  It  is  not 
contended  that  this  judgment  has  been  actually  paid,  but  that  it  has 
been  discharged  by  an  agreement  between  the  bank  and  the  drawer. 
1'he  actual  payments  under  this  agreement  must,  of  course,  be  ap- 
plied. But  it  is  also  said  that  this  judgment  has  been  discharged  by 
the  bank  permitting  the  drawer  to  check  out  funds  which  they  might 
have  applied  to  it.  If  this  question  were  on  the  note  simply,  it 
might  be  a  discharge;  but  here  is  a  judgment,  and  you  cannot  dis- 
charge a  judgment  by  matter  of  a  less  grade.  This  is  the  rule  at 
law.  Nothing  but  actual  pa)Tnent,  or  release,  will  discharge  at  law. 
The  indebtedness  therefore,  of  the  plff.  is  established. 

Second.  Whether,  under  the  by-law,  the  bank  has  a  lien  on  this 
stock,  and  could  lawfully  prevent  its  transfer.  We  would  like  more 
time  to  examine  this  question,  but  must  now  decide  it  on  the  best 
consideration  we  have  been  able  to  give  it.  This  bank  commenced 
under  certain  articles  of  agreement,  one  of  which  gives  the  board  of 
directors  authority  to  make  rules  concerning  the  transfer  of  stock.  It 
invests  them  with  a  general  power  to  regulate  this  matter.  A  by- 
Liw  was  made  in  1826,  proliibiting  any  member  of  the  corporation 
f 'om  transferring  his  stock  whilst  indebted  to  the  bank.  The  char- 
ter, 1  D.  L.  328,  confirms  these  articles  and  also  gives  the  power  to 
make  by-laws.  These  by-laws  must  be  reasonable  and  consistent 
with  the  laws  of  the  state.     We  see  nothing  in  thiR  one  unreasonable 


32  Ffbnon,  Indorsee  of  Lynch  vs.  Faemer's  Adm'e. 

or  repugnant.  It  does  not  affect  other  than  members  of  the  corpora- 
tion whose  privilege  and  duty  it  is,  before  they  become  such,  to  ac- 
quaint themselves  with  the  rules  of  the  institution,  so  far  as  they 
would  affect  their  interests.  In  reference  to  the  institution  it  is  a 
very  salutary  rule ;  greatly  to  the  security  and  advantage  of  the  stock- 
holders, and  to  the  public,  by  facilitating  loans.  It  is,  therefore,  in 
our  opinion  a  valid  by-law,  and  binding  on  all  the  corporators.  In 
this  opinion  we  are  supported  by  the  decision  of  a  very  able  man, 
reported  in  2  Peere  Wms.,  207,  in  the  case  of  Child  vs.  Hudson's 
Bay  Co.,  where  it  was  decided  that  the  company  could  take  the 
stock  of  a  member  for  his  debts,  under  a  by-law  similar  to  this.  The 
legal  interest  in  all  the  stock  is  in  the  corporation  for  its  benefit. 
We  therefore  think  that,  under  the  circumstances  of  this  case,  sup- 
posing the  indebtedness  of  plff.  to  the  bank  proved,  they  were  autho- 
rized to  refuse  him  permission  to  transfer  his  stock. 

The  plff.  being  called,  was  non  pros'd. 

J.  A.  Bayard  and  Read,  Jr.,  for  plff. 

Rogers  and  Wales,  for  deft. 

On  motion,  rule  to  show  cause  why  the  judgment  of  non  pros, 
should  not  be  set  aside,  and  a  venire  facias  de  novo  awarded,  on  the 
ground  of  a  misdirection.  This  motion  was  not  prosecuted,  and  the 
rule  was,  of  course,  discharged. 


THOMAS   FERNON,  Indorsee  of  JNO.  LYNCH  vs.   THOMAS 
FARMER'S  Administrator. 

The  words   "  or  order "   or   words   tantamount,   necessary    to   make   a    note 

negociable. 

Assumpsit  on  promissory  note.  Indorser  vs.  Maker.  Pleas.  Non 
assumpsit;  payment  and  discount;  Act  of  Limitations  and  plene 
administravit.     Reps,  and  issues. 

Plff.  proved  the  execution  of  the  note  and  the  indorsement  to  him, 
and  a  promise,  by  the  deffs.  intestate,  after  the  indorsement,  to  pay 
the  note  to  plff. 

Hamilton,  for  deft,  moved  a  nonsuit. 

The  note  declared  on  is  a  note  payable  to  Thomas  Lynch,  or  order. 
The  note  proved,  is  payable  to  Thomas  Lynch,  but  not  to  his  order. 
This  i?  a  fatal  variance. 

Bayard  suggested  that  the  words  "  or  order,"  might  be  stricken 
out  without  affecting  the  instrument ;  if  so,  it  is  mere  surplusage. 

Wales  replied,  that  is  was  of  substance  and  material.  Chitty  on 
Bills,  140. 

The  question  was,  whether  the  words  "  or  order  "  were  necessary 
to  make  the  note  negociable,  and  the  court  being  of  that  opinion, 

Nonsuited  the  plff. 

J.  .A.  Bayard,  for  plff. 

Hamilton  and  Wales,  for  deft. 


Bradleys'  Exb's.  vs.  Read.  33 


DOCT.  GIDEON"  JAQUES  vs.  JOHN"  EICE. 

The  adjournment  of  a  cause  by  a  justice  of  the  peace  must  be  to  a  certain  day, 

and  not  indefinitely. 

Certiorari.  First,  Exception.  That  the  cause  was  adjourned 
by  the  justice,  at  the  request  of  the  referees,  without  fixing  any  time; 
c>r  place  of  adjournment. 

Judgment  reversed.. 


BENJAMIN  GROVES  vs.  CHARLES  HICKMAN". 

A  constable's  return  of  "  served  by  copy  "  is  not  suflBcient. 

Certiorari.  This  was  a  judgment  by  default.  The  constable 
returns,  "  Feb.  17th,  1829,  served  by  copy.     H.  Bruner." 

The  court  reversed  the  judgment  on  the  ground,  that  this  return 
did  not  specify  whether  the  service  was  on  the  deft,  personally  or 
]}y  leaving  a  copy  at  his  house. 

Judgment  reversed. 


THE  CASE  OF  ELI  CROZIER. 

If  constable  takes  the  body  to  prison,  he  must  leave  a  certified  copy  of  the 
execution  to  authorize  the  prisoner's  detention. 

H.VBEAS  Corpus.  The  petitioner  was  committed  on  execution 
process  from  a  justice  of  the  peace.  The  objection  was  to  the  form 
of  the  mittimus. 

The  Act  of  Assembly  authorizes  the  detention  of  a  prisoner  on  a 
certified  copy  of  the  writ  of  execution.  The  process  upon  which 
deft,  was  detained,  was  a  printed  blank  warrant,  filled  up  by  the 
constable,  and  indorsed  "committed  May,  7,  1832,  by  Jno.  Rudolph, 
cons't." 

The  court  discharged  the  prisoner  on  the  ground,  that  this  was  not 
a  certificate  that  it  was  a  copy  of  the  original  execution. 


ANDREW  BRADLEY  and  T.  C.  BRADLEY,  Bit's,  vs.   GEORGE 
READ,  Esq.,  Plff.,  b. 

Certiorari.  Exceptions.  1st,  But  one  of  the  executor  was  sum- 
moned, and  judgment  is  given  against  both.  2nd,  The  judgment  is 
against  the  executors  personally,  and  it  ought  to  have  been  of  assets. 
3rd,  The  execution  is  against  the  executors  personally,  whereas,  it 
ought  to  have  been  de  honis  testatoris. 

The  Court  reversed  the  judgment. 
5 


84  Eandel  vs.  Wriqht. 

Hahrington,  J.,  thought  the  judgment  good,  and  the  execution 
bad.  The  summons  was  regularly  served  on  one  of  the  executors. 
He  appeared  and  went  into  a  trial.  The  referees  reported  generally 
for  plff.,  and  the  justice  entered  judgment  for  plff.  without  designa- 
ting what  kind  of  judgment,  whether  of  assets  or  not.  The  10th 
section  of  the  Act  of  Assembly,  (Dig.  336.)  makes  every  judgment 
rendered  by  a  justice  against  an  executor  as  sujch,  a  judgment  of  as- 
8fct8.  I  take  this  then  to  be  a  judgment  of  assets,  rendered  against 
the  estate  of  the  deceased,  which  was  represented  by  one  of  the  ex- 
■ecutors,  whose  acts  bind  the  estate  as  fully  as  if  both  had  been  sum- 
moned and  were  present.  The  execution  does  not  pursue  the  judg- 
ment, and  is  vitious. 


PETER  A.  HUMPHRIES,  Constable  vs.  CLARK  WEBSTER,  in- 
dorsee, &c. 

An  action  against  a  constable  for  neglecting  to  return  an  execution  would  not 
lie  before  a  justice  of  the  peace,  prior  to  the  Act  of  1833. 

Certiorari.  This  was  an  action  brought  by  "Webster  against 
Humphries,  the  constable,  for  the  amount  of  an  execution,  at  the  suit 
of  the  said  Webster  against  Andrew  Alston,  which  the  said  constable 
liad  not  returned  agreeably  to  the  command  thereof;  and  thus  ren- 
dered himself  liable.     Dig.  341. 

The  question  was,  whether  the  justice  had  jurisdiction. 

The  Court  said  that  an  action  for  neglect  to  return  an  execution 
by  which  the  constable  becomes  liable,  ought  to  be  a  special  action 
on  the  case  founded  on  the  statute.  It  must  be  in  tort.  An  action 
for  money  had  and  received,  could  not  be  sustained.  Though  the 
Act  makes  the  constable  equally  liable  as  if  the  money  had  been  re- 
ceived, it  cannot  affect  the  form  of  the  remedy,  which  must  show  the 
special  matter  on  which  the  constable's  liability  arises,  and  must 
therefore,  be  a  special  action  on  the  case,  founded  on  the  neglect  of 
duty,  and  the  statutory  liability.  Such  an  action  is  not  within  the 
jurisdiction  of  a  justice  of  the  peace. 

Judgment  reversed. 

Wales,  for  plff.     Rodney,  for  deft. 

(But  see  Act  of  1833,  (8  v.  265),  since  passed,  giving  jurisdiction 
in  such  case.) 


JOHN  RANDEL,  Jr.  vs.  BENJAMIN  WRIGHT. 

A  variance  between  a  contract  alledged  and  one  offered  in  evidence,  is  fatal; 

and  this,  whether  the  action  be  upon  the  contract  or  in  tort  arising  out  of  it. 
Distinction  between  allegation  of  an  instrument  by  its  tenor  and  by  its  sub' 

stance. 
The  court  will  not  reserve  a  clear  point  for  argument  before  all  the  judges 

however  important  the  point  may  be,  in  the  particular  case. 

Trespass  on  the  case.      Pleas,  Not  guilty  and  Act  Limitations. 
Issues. 


Eandel  vs.  Weight.  35 

This  Avas  an  action  on  the  case  by  John  Randel,  Jr.,  a  contractor 
on  the  line  of  the  Chesapeake  and  Delaware  Canal  against  Benjamin 
Wright,  the  chief  engineer  of  that  Company,  for  a  series  of  injuries 
ulledged  to  have  been  done  maliciously  and  intentionally,  by  the 
deft,  upon  the  plff.  The  contract  between  the  plff.  and  the  Canal 
<^ompany,  constituted  the  deft,  in  certain  matters,  an  umpire  be- 
tween the  parties,  and  gave  to  him  extensive  powers  in  the  general 
.superintendence,  direction  and  management  of  the  work.  The  de- 
<3laration  charged  that  the  deft,  instead  of  acting  impartially,  and  in 
,Tood  faith  between  the  parties,  was  actuated  throughout  by  the  ma- 
licious motive  of  ruining  the  plff.,  who  was  a  rival  engineer;  and, 
under  the  influence  of  this  motive,  that  he  intentionally  and  mali- 
ciously did  sundry  acts,  specified  in  the  declaration,  to  harass  and 
embarrass  the  plff.  in  the  execution  of  the  work,  and  finally  by  mis- 
representation, induced  the  Company  to  declare  their  contract  with 
plff.  abandoned,  and  his  contract  forfeited.  The  damages  were  laid 
at  one  hundred  thousand  dollars. 

The  plff.  offered  in  evidence  the  contract  between  him  and  the  Ca- 
nal Company.  (See  this  contract  set  out  in  Randel  vs.  Chesapeake 
and  Delaware  Canal  Company,  post      .)     It  was  objected  to. 

Frame,  for  deft. 

We  object  to  the  reading  of  this  contract  in  evidence,  because  it  is 
totally  different  from  the  contract  set  forth  in  the  declaration.  It  is 
all  important  to  the  plff's.  cause  of  action,  and  any  material  variance 
will  be  fatal.  I  will  point  out  some  of  the  most  prominent  variances 
between  this  contract,  and  the  one  declared  on.  1st.  The  contract 
is  for  excavating  the  Chesapeake  and  Delaware  Canal;  the  contract 
declared  on  is  for  excavating  the  Delaware  and  Chesapeake  Canal. 
2nd.  The  contract  in  fixing  the  pay,  refers  to  an  estimate  made  by 
Randel;  and  agrees  to  give  him  such  pay  as  is  set  down  in  said  esti- 
mate; the  narr  sets  out  an  agreement  to  pay  as  set  down  in  an  esti- 
mate made  by  Eandel.  This  is  too  indefinite  and  general;  it  is  at 
least  different  from  the  real  contract.  3rd.  The  contract  authorizes 
a  change  of  the  rate  of  payment.  The  narr  has  it  "  a  charge  of  the 
rate  of  payment."  4th.  In  relation  to  a  revision  of  the  rates  and  a 
difference  between  the  parties,  the  contract  declares,  that  the  esti- 
mate of  Wright  when  certified,  .should  be  conclusive.  The  narr 
sets  out  that  the  estimate  of  Wright  should  be  conclusive,  without 
noticing  the  certificate.  This  is  a  substantial  and  material  part  of 
the  contract  omitted  in  the  narr.  5th.  The  certificate  and  determi- 
nation that  the  work  is  abandoned,  avoids  the  contract  according  to 
its  terms  "  except  to  pay  as  aforesaid,  for  worh  already  done." 
This  exception  is  entirely  omitted  in  the  narr.  6th.  Contract.  In 
case  Eandel  should  be  prevented  "  from  entering  upon  or  flooding 
lands."  Narr.  In  case  he  should  be  prevented  "  from  entering  upon 
flooding  lands."  7th.  In  the  same  clause,  the  words  "  that  in  case  " 
contained  in  the  contract,  are  omitted  in  the  narr.  8th.  The  sched- 
ule of  prices.  The  narr  professes  to  set  out  this  in  words  and  figures. 
In  the  third  line  the  narr  omits  the  word  yard,  stating  it  10  cents 
per  cubic,  for  excavation.  The  word  "  section  "  is  used  for  station; 
''  plan  "  for  place;  "  drains  "  for  bacJc-drains;  "  station  No.  166  " 
for  station  No.   116.      The  contract  offered  in  evidence,  fixes  the 


36  Randel  vs.  V/right. 

price  from  70  feet  and  downwards  at  61  1-10  cents;  the  contract  de- 
clared on  fixes  it  for  the  same  excavation,  at  61  1-20  cents.  The 
former  allows  13  cents  per  yard,  where  there  is  a  deficiency  of  excava- 
tion to  form  the  towing  path ;  the  latter  allows  the  13  cents  per  yard, 
where  there  is  a  "  deepening  "  of  the  excavation,  &c. 

It  may  be  said  that  this  contract  is  set  out  only  by  way  of  induce^ 
ment,  and  in  an  action  sounding  in  tort,  and  not  upon  the  contract. 
This  is  not  so  if  it  were  material  to  make  the  distinction,  for  with- 
out this  contract  there  is  no  ground  of  action.  Without  it  there  ex- 
ists no  kind  of  privity  or  connection  between  either  Eandel  and  the 
Canal  Co.,  or  Randel  and  Wright.  But,  suppose  it  be  only  an  aver- 
ment by  way  of  inducement,  still  the  parl^  is  bound  to  prove  its 
substance  and  legal  effect:  and  that  notwithstanding  this  is  an  action 
on  the  case  sounding  in  tort.  You  need  not  set  out  the  whole  of  an 
instrument  but  only  its  legal  effect :  but  if  you  do  set  out  unnecessary 
parts,  you  must  prove  them,  2  Doug.  665;  Bristow  vs.  Wright.. 
Irrelevant  matter,  that  which  may  be  struck  out  on  motion  without" 
affecting  the  ground  of  action,  need  not  be  proved.  The  distinction- 
is  between  irrelevant  and  immaterial  averments.  Immaterial  aver- 
ments are  such  as  though  they  need  not  have  been  set  out,  are  so- 
connected  with  the  ground  of  action,  that  they  cannot  be  struck  out 
without  destroying  it,  and  must  be  proved.  2  East,  452,  William- 
son vs.  Allison.  The  contract  is  an  entire  thing,  and  if  you  fail  to 
prove  it  as  laid,  you  fail  to  identify  it.  The  whole  contract  here  is 
one  averment;  not  divisible  into  branches:  unless  the  whole  of  this 
averment  may  be  stricken  put  it  must  be  proved.  The  proof  must 
correspond  with  the  statement.  A  material  averment,  though  laid 
as  inducement,  must  be  proved;  and  the  form  of  the  action  makes  no- 
difference.  12  East,  452;  2  Starh.  Evid.  352-3-4;  3  do.  1548,. 
7  Cranch,  208.  This  is  the  proper  mode  of  making  the  objection. 
Vide  also,  12  Com.  L.  R.  223.  6  T.  R.  771 ;  1  do.  235 ;  5  Com.  L. 
R.  180. 

Read,  Jr.,  for  plff. 

This  is  an  action  of  tort  between  two  persons;  having  no  origin  in- 
contract  between  them,  but  in  which,  as  the  merest  matter  of  induce- 
ment, it  became  proper  to  set  out  a  contract  between  one  of  them  and 
a  third  party,  in  order  to  show  the  relative  situation  of  plff.  and  deft. 
Xo  cause  of  action  is  founded  on  this  contract,  or  grows  out  of  it,, 
either  as  against  the  Compan}'^  or  the  deft.  It  is  for  the  torts  of  the- 
engineer  totally  distinguishable  from  any  matter  of  contract.  In 
what  manner  therefore,  is  the  relation  of  the  parties  affected  by  the 
clerical  errors  pointed  out. 

Examines  these  to  show  that  they  are  unimportant.  1st.  The 
name  of  the  Canal  Co.  It  follows  a  correct  statement  of  the  name, 
and  is  immaterial.  2nd.  The  reference  to  the  estimate  is  the  same 
with  the  said  estimate.  No  other  estimate  is  spoken  of.  3rd. 
"  Charge  "  for  change ;  it  is  doubtful  in  fact,  which  word  is  used. 
4th.  In  relation  to  a  revision  of  the  contract;  "when  certified"  left 
out  in  the  narr.  How  is  this  material.  It  was  a  stipulation  between 
Randel  and  the  company,  and  can  have  no  bearing  as  between  these 
parties.  5th.  Contract  avoided  "except  to  pay  as  aforesaid,  for 
work  already  done."     These  words  omitted.      It  was  only  necessary 


Eandel  vs.  Wright.  37 

for  us  to  set  out  so  much  of  this  part  of  the  contract  as  shows  that 
the  Canal  Co.,  had  the  power  to  declare  the  work  abandoned.  The 
consequences  of  this  act  of  the  company  as  between  these  parties,  are 
irrelevant  and  immaterial.  For  if  the  company  had  the  power  to 
put  an  end  to  this  contract,  and  did  put  an  end  to  it  on  the  fraudu- 
lent certificate  of  deft.,  it  is  enough  for  the  purposes  of  this  action, 
w^hatever  may  have  been  the  consequence  of  the  abandonment  as  be- 
tween the  plff.  and  the  Canal  Co.  Being  therefore,  immaterial  in 
this  cause,  it  need  not  have  been  set  out.  6th.  The  use  of  the  word 
'•'  or  "  for  and.  Does  not  alter  the  meaning.  8th.  The  omission  of 
the  word  ijard  after  cubic.  The  sense  supplies  it.  The  subject  spoken 
of  is  yards  per  cubic  measure,  and  the  narr  gives  the  price  at  so 
much  per  cubic.  9th.  "  Section  "  for  station.  It  is  precisely  the 
same  thing  as  here  used.  Up  to  station  No.  —  is  the  termination 
of  the  section,  and  either  form  of  expression  designates  the  same  ex- 
tent of  the  canal.  ]  0th.  "  Planed  "  for  placed.  The  sense  makes 
it  plain.  11th.  "  Drains  "  for  back-drains.  There  are  no  other 
drains  than  back-drains,  and  the  repetition  of  the  word  back,  is  un- 
necessary. 12th.  The  variance  in  the  price  between  61  1-10  and 
61  1-20  is  wholly  immaterial,  as  between  these  parties;  and  as  the 
sum  for  the  whole  section  is  fixed,  it  could  make  no  difference  in  the 
final  calculation.  14th.  "  Deepening  "  for  deficiency;  an  inseiisible 
word,  which  may  be  struck  out  without  affecting  the  contract,  and 
immaterial  as  between  these  parties. 

But  as  to  the  general  principles.  These  actions  on  the  case  may  be 
divided  into  three  classes ;  1st,  where  the  plff.  seeks  his  remedy  on  the 
contract,  as  against  the  person  who  is  a  party  to  that  contract.  This 
is  the  strictest  class  in  regard  to  proof  of  averments.  Here  the  law 
insists  on  the  utmost  strictness,  but  not  the  strictness  of  the  criminal 
law.  2nd.  Where  the  action  assumes  more  the  aspect  of  a  tort,  yet 
is  founded  entirely  on  the  contract,  as  in  actions  for  warranty.  Here 
though  the  action  is  for  the  tort,  it  is  essentially  grounded  on  the  con- 
tract; and  this  is  the  class  of  cases  cited  on  the  other  side.  3  Burr. 
JL  1586 ;  1  T.  R.  447.  Third  class  embraces  cases  like  the  present. 
When  the  complaint  is  for  a  tort  unmixed  with  contract,  and  not 
founded  in  any  shape  on  contract,  Avhere  there  is  no  privity  through 
the  contract  between  plff.  and  deft.,  but  where  the  contract  is  alluded 
to  only  by  way  of  inducement,  to  inform  the  court  out  of  what  cir- 
cumstances the  tort  arose.  The  contract  here,  is  totally  immaterial 
to  the  issue  joined :  the  deft,  is  not  a  party  to  it,  nor  bound  by  any 
one  of  its  stipulations;  and  it  is  alluded  to  only  to  show  a  relative 
position  of  these  parties,  out  of  which  the  wrong  arose. 

StarUe,  in  p.  1548,  is  speaking  of  torts  founded  on  the  contract. 
See  the  note  a  reference  to  Mass.  Eep.  The  doctrine  in  Bristow  vs. 
Wright,  (Douglass,  665.)  must  be  confined  to  contracts.  3  T.  Rep. 
643. 

Rogers,  for  plff. 

The  argument  on  the  other  side  and  the  authorities  go  upon  the 
supposition,  that  we  have  assumed  to  set  out  this  contract  by  its 
tenor.  We  have  assumed  to  set  it  out  only  according  to  its  sub- 
stance and  legal  effect.     The  cases  are  very  different.     A  party  need 


38  Randel  vs.  Wright. 

not  set  out  the  whole  of  a  contract;  even  in  actions  on  the  contract. 
3  Moorej  214;  4  C.  L.  R.  431 ;  1  Stark.  294;  2  C.  L.  R.  396. 

The  most,  and  the  most  material  variances  alledged  here,  are  nothing 
more  than  omissions.  The  others  are  mere  verbal  criticisms  not 
affecting  the  sense.  In  5  T.  Rep.  497,  Pippin  vs.  Solomons,  Buller 
says  he  is  aware  that  the  doctrine  in  Bristow  vs  Wright,  has  been 
doubted.  He  again  qualifies  the  decision  there  in  Owinnet  vs.  Philips. 
Bond  averred  in  substance  to  "  Lord  Viscount  Gave.*'  Variance, 
"  Ld.  V.  Gave."  Held  good  enough.  Debt  on  bond  — "  to  pay 
to  att'y."  Variance,  "  to  pay  to  the  party."  Held  good.  2  Str. 
909,  King  vs.  Morris.  Judgment  against  "  Urghart."  Proof  of  a 
judgment  against  (blank.)     Held  good. 

The  objections  urged  here  would  seem  rather  to  apply  to  cases  of 
criminal  proceeding:  and,  even  in  these  cases,  the  omission  of  words 
has  been  held  not  to  vitiate ;  as  in  the  omission  of  the  word  "  de- 
spaired;" whereby  his  life  was  greatly  (despaired)  of;  the  use  of  the 
word  "  undertood "  for  understood,  &c.  Phil.  Ev.  166,  note  6.  A 
narr  stating  that  differences  existed  between  six  persons,  may  be 
proved  by  a  bond  reciting  differences  between  the  three  first,  and 
three  last.  5  C.  L.  R.  312,  Cockrel  vs.  Gray;  7  Com.  L.  R.  403. 
Debt  on  bond  to  pay  in  twelve  calendar  months.  The  narr  omitted 
the  word  "  calendar  "  and  held  good  —  though  the  law  means  lunar, 
and  not  calendar  months,  when  months  are  spoken  of  generally. 

J.  M.  Clayton,  for  plff.,  stated,  that  though  not  regularly  the 
counsel  of  plff.  in  this  cause,  he  was  counsel  in  another  cause  nearly 
allied  to  it,  and  now  on  the  list.  Witliout  designing  to  enter  at  large 
into  the  points  that  have  been  debated,  he  would  ask  leave  to  sug- 
gest another  matter  for  consideration,  and  to  submit  a  motion  in  rela- 
tion to  this  case.  Under  the  old  constitution,  the  courts  have  in 
some  cases,  allowed  amendments  at  this  stage  of  the  proceedings;  in 
other  cases  they  have  refused  it.  We  think  it  a  proper  occasion  for 
finally  settling  the  doctrine  of  amendments,  and  we  submit  that  the 
best  form  in  which  it  can  be  settled,  is  upon  argument  in  the  court  in 
bank.  This  is  an  exceedingly  important  case,  in  reference  both  to 
the  parties  and  to  the  principles  in  dispute,  relative  to  the  pleadings. 
In  any  event  of  a  decision  —  certainly  if  against  the  plff.,  there  will 
be  a  bill  of  exceptions;  and,  in  that  case,  we  should  go  to  a  Court  of 
Appeals,  consisting  of  the  Chancellor  (Johns)  and  resident  Judge 
(Black,)  both  of  whom  have  been  of  counsel  in  this  case  on  opposite 
sides,  and  who  have  therefore,  prejudged  it,  and  one  of  the  judges 
here  who  must  have  prejudged  it.  From  these  circumstances  and 
from  a  wish  to  have  the  important  points  here  contested,  fully 
argued  before  all  the  judges,  we  move  the  court  to  save  the  point  in 
relation  to  the  admissibility  of  this  contract  in  evidence  for  hearing 
in  the  court  in  bank. 

Bayard,  for  deft.,  opposes  the  reservation  of  this  question  for  a 
court  in  bank.  I  deny  that  there  is  any  question  of  law  in  this  case 
doubtful,  or  deserving  of  more  than  a  moment's  consideration  by  any 
lawyer.  If  there  be  any  doubt,  it  is  in  the  application  of  a  plain 
question  of  law,  rather  than  the  decision  of  a  doubtful  question.  But 
the  exercise  of  this  discretion  by  the  court  in  saving  points  could  in 


KaNDEL    vs.    WllIGHT.  39 

no  event  do  the  other  side  any  good.  It  is  not  possible  for  the  court 
ever  to  render  a  judgment  on  this  narr.  It  is  a  narr  that  would  shame 
a  tyro;  and  I  take  the  liberty  of  saying  so,  because  it  was  not  filed 
by  my  friends  on  the  other  side.  There  is  no  allegation  of  special 
damage  throughout  this  narr.  iS'ot  a  syllable  in  it  that  affirms  that 
Randel  ever  stuck  a  spade  in  the  canal,  or  did  an  hour's  work  upon 
it.  It  is  not  even  set  forth  that  the  company  have  declared  the  con- 
tract forfeited.  He  7nvst  therefore  be  nonsuited  in  any  event, 
whether  tlie  contract  be  admitted  or  excluded.  But  we  stand  in  this 
situation.  We  find  a  cause  here  which,  upon  the  pleadings,  we  see 
it  is  impossible  for  the  plff.  to  succeed  with,  and  we  tell  our  client, 
as  we  have  told  him,  not  to  go  to  the  expense  of  summoning  wit- 
nesses ;  that  he  needed  no  other  defence  to  such  a  declaration  than  the 
poor  abilities  of  his  counsel;  and  thus,  with  a  plain  case  before  the 
court,  they  are  asked  to  save  a  point  and  send  us  to  a  jury  unprepared 
as  it  regards  facts,  because  we  relied,  as  we  had  a  right  to  do,  on  the 
law.  But  the  good  of  the  comiuunity  forbids  the  reservation  of  this 
point.  There  are  thirty  or  forty  causes  now  waiting  for  trial,  and 
we  are  asked  to  consume  another  week  in  the  trial  of  a  cause  the 
final  determination  of  which,  against  the  plif.,  is  absolutely  certain. 
The  question  of  amendment  at  this  stage  of  the  proceedings  I  shall 
not  argue,  and  this  court  refused  to  hear  it  argued  at  its  late  session 
in  Sussex.     I  proceed  then  to  the  cause. 

The  principles  of  pleading  are  founded  on  sound  reason,  justice 
and  expediency.  They  are  approved  by  sound  policy,  and  tend  to 
the  more  speedy  and  certain  administration  of  justice.  It  has  been 
the  reproach  of  Lord  Mansfield,  thai  he  was  too  much  of  a  civilian; 
too  apt  to  look  beyond  the  technical  rules  in  the  confused  and  uncer- 
tain search  after  the  justice  of  the  particular  case.  Yet  we  will  place 
this  cause  on  Lord  Manfield's  opinion. 

Wherever  you  set  out  a  contract  you  must  set  it  out  truly,  in  sub- 
stance at  least,  and  prove  it  as  stated;  and  this,  whether  the  action 
be  upon  the  contract,  or  for  a  tort  arising  out  of  it.  If  a  party  does 
not  choose  to  set  out  a  contract  in  substance,  he  may  plead  it  by  the 
ienor,  and  it  then  becomes  matter  of  description,  and  must  be  proved 
strictly  as  laid.  The  matters  set  forth  may  be  material,  immaterial 
or  irrelevant.  The  first  must  be  set  out;  the  second  need  not  be; 
but,  if  set  out,  it  must  be  proved  as  stated:  the  third  need  not  be 
pleaded ;  and,  if  pleaded,  need  not  be  proved.  It  may  be  struck  out 
on  motion.  And  in  either  of  the  first  cases  the  question  of  variance 
may  be  raised  on  an  objection  to  the  evidence.  If  a  contract  be  set 
out  by  the  tenor,  the  party  is  held  to  half  a  letter.  The  reason  is, 
he  thus  makes  it  matter  of  description,  and  the  slightest  variance 
destroys  the  identity.  The  amount  of  the  cases  is,  that  any  vari- 
ance where  the  party  sets  out  by  the  tenor  is  fatal;  and  neither  the 
form  of  action,  nor  the  materiality  of  the  part  set  out  makes  and  dif- 
ference. A  part,  at  least,  of  this  contract,  the  schedule,  is  set  out, 
and  so  professes  to  be,  in  haec  verba,  by  its  tenor.  12  East,  452; 
Stark.  1548;  6  T.  R.  771;  2  Doug.  665;  2  B.  <&  Pul.  463;  12  C.  L. 
R.  223;  4  T.  R.  611;  Gordon  vs.  Austin;  Hoare  vs.  Mill;  4,  M.  <& 
Sclw. 

If  this  be  a  case  of  the  third  class  stated  by  Mr.  Bead,  so  entirely 


40  Handel  vs.  Weight. 

distinct  from  contract,  and  where  none  need  be  alledged  to  found  the 
action  upon :  if  it  be  for  a  mere  tort  unconnected  with  contract,  why 
urge  the  admission  of  this  contract  in  evidence?  I  dismiss,  there- 
fore, this  class,  stating  generally  that  in  any  action  where  it  is  neces- 
sary to  set  out  a  contract  either  by  way  of  inducement  or  otherwise, 
it  must  be  proved  as  stated. 

Mr.  Bayard  then  went  into  a  particular  examination  of  the  vari- 
ances in  this  case,  applying  to  them  the  above  general  principles,  and 
concluding  that  many  of  them  were  actually  material  as  to  the  result 
of  this  case  as  affecting  the  question  of  damages;  and  that  some  of 
those  occurring  in  the  schedule,  which  was  set  out  by  the  tenor, 
■would  be  fatal  if  it  had  only  been  set  out  in  substance  and  legal  effect. 
He  also  reviewed  the  cases  cited  on  the  other  side. 

In  answer  to  some  remarks  of  Mr.  Bayard,  on  the  application  to 
reserve  the  point,  the  counsel  for  the  plff.  now  put  in  an  application 
in  writing  to  that  effect. 

The  Court  said  the  provision  of  the  constitution  on  this  subject,  re- 
lates to  questions  of  difficulty  and  importance  where  the  law  is  doubt- 
ful, and  the  object  is  to  settle  a  vexed  question  before  all  the  judges. 
In  other  cases,  the  party  is  left  to  his  appeal.  We  entertain  no 
doubts  in  this  case,  nor  do  we  think  it  presents  any  question  which, 
from  its  doubtful  character,  "  ought  to  be  decided  before  «;11  the 
judges."  The  object  of  the  constitution  in  vesting  a  discretion  in 
the  court  as  to  saving  points,  was  to  confine  them  to  cases  where  the 
law  is  unsettled. 

The  Chief  Justice  proceeded :  — 

"  We  regret  that  this  objection  has  been  made,  and  we  should  have 
been  glad  if  the  case  could  have  gone  to  the  jury  entirely  on  its 
merits;  but  the  deft,  had  a  right  to  make  the  objection,  and  we  are 
bound  to  consider  and  decide  it. 

This  is  an  action  on  the  case  in  tort,  in  which  the  plff.  seeks  to  re- 
cover of  the  deft,  damages  for  certain  malicious  and  wrongful  acts; 
and  to  sustain  the  action,  it  becomes  necessary  to  set  out,  by  way  of 
inducement,  a  certain  contract  between  the  plff.  and  the  Chesapeake 
and  Delaware  Canal  Company.  This  contract,  it  is  true,  is  not  the 
cause  of  action  in  the  present  case,  but  it  is  the  foundation  of  the 
action,  or  that  through  which  alone  it  can  be  sustained;  for  without 
setting  this  instrument  out  in  his  declaration,  the  plff.  could  not  en- 
title himself  to  damages  against  the  deft.  This,  therefore,  was  a 
material  and  necessary  averment,  without  which  the  plff's.  declaration 
would  be  bad,  it  could  not  be  struck  out  and  leave  a  right  of  action 
remaining.  It  is  essential  to  the  existence  of  the  right  of  action. 
With  respect  to  what  averments  are  necessary  to  be  proved,  the  rule 
is,  that  if  the  whole  of  an  averment  may  be  struck  out  without  de- 
stroying the  plff's  right  of  action,  it  is  not  necessary  to  prove  it,  for 
it  is  mere  surplusage;  but  it  is  otherwise,  if  the  whole  cannot  be 
struck  out  without  getting  rid  of  a  part,  essential  to  the  cause  of 
action ;  for  then,  though  the  averment  be  more  particular  than  it  need 
have  been,  the  whole  must  be  proved  as  laid,  or  the  plff.  cannot  recover. 
2  East,  452 ;  12  do.  452. 

A  distinction  is  now  established  between  allegations  of  substance 


Eandel  vs.  Wright.  41 

and  allegations  of  matter  of  description.  The  former  require  to  be 
iubstantially,  the  latter  must  be  literally  proved;  and  if  in  the 
action  on  the  case  a  contract,  written  instrument,  or  other  entire  sub- 
ject matter,  be  alledged,  it  must  be  proved  in  the  same  manner  as  if 
ihe  action  were  founded  on  it;  the  thing  being  entire  and  indivisible, 
Ihe  proof  ought  to  support  the  allegation.  And  where  a  written  in- 
strument is  not  described  by  its  tenor,  but  merely  according  to  its 
substance  and  effect,  if  it  be  not  what  the  legal  construction  of  the 
instrument  warrants,  the  variance  will  be  fatal,  although  the  allega- 
iion  on  which  the  variance  arises  is  immaterial.  3  Bos.  &  Put.  463. 
iVnd  the  law  is  the  same  whether  the  allegation  be  merely  matter  of 
inducement,  or  be  the  immediate  cause  of  the  action;  or  whether 
Ihe  action  be  debt,  assumpsit  or  in  tort. 

Many  variances  have  been  pointed  out  by  the  deft's.  counsel  be- 
iween  the  instrument  of  writing  alledged  in  the  declaration,  and  that 
offered  in  evidence.  Among  those  pointed  out,  it  may  not  be  neces- 
sary to  take  notice  of  any  others  than  those  which  occur  in  the  fol- 
lowing clauses :  "And  to  prevent  misunderstandings  and  disputes  it 
is  hereby  agreed,  that  Benjamin  Wright,  Esq.  or  some  other  com- 
])etent  engineer,  to  be  selected  by  the  party  of  the  second  part,  shall 
be  the  inspector  of  the  said  works,  and  shall  estimate  the  number  of 
cubic  yards  of  excavation,  and  also  of  embankment,  and  his  esti- 
mate thereof  when  certified  to  the  party  of  the  second  part,  shall 
be  final  and  conclusive  between  the  parties;" — "And  it  is  further 
ngreed,  that  if  the  opinion  of  the  engineer-in-chief  for  the  time  being, 
in  the  employ  of  the  party  of  the  second  part  shall  be,  that  the  party 
of  the  first  part  refuses,  or  unreasonably  neglects  to  prosecute  this 
contract,  such  engineer  may  certify  the  same  to  the  said  party  of  the 
second  part,  and  on  his  certificate  the  said  party  of  the  second  pari 
shall  have  the  power  of  determining  that  he  has  abandoned  it,  and 
such  determination  shall  altogether  exonerate  the  said  party  of  the 
second  part,  from  every  obligation  imposed  on  them  by  the  said  con- 
iract  except  to  pay  as  aforesaid  for  work  already  done."  Two 
essential  parts  of  this  part  of  the  contract  have  been  omitted  in  the 
declaration,  to  wit :  in  the  first  clause  the  words  "  and  his  estimate 
thereof,  when  certified  to  the  party  of  the  second  part,"  for  with- 
out this  certificate,  the  Company  never  could  have  declared  the  con- 
iract  abandoned.  It  is  an  essential  part  of  the  agreement  without 
"vv^hich,  the  residue  of  the  clause  is  materially  and  substantially  altered. 
]n  the  second  clause,  the  words  "  except  to  pay  as  aforesaid,  for 
^vork  already  done,"  are  omitted  in  the  declaration,  and  these  words 
form  a  most  material  and  important  part  of  the  contract,  for  without 
ihem,  the  plff.  could  not  have  demanded  payment  for  the  work  he 
had  accomplished.  The  declaration,  therefore,  sets  out  a  contract 
substantially  different  from  that  offered  in  evidence.  They  are  in  fact 
tiifferent  instruments,  and  not  as  they  should  be,  identically  the  same. 
There  are  other  variances  between  the  instrument  set  out  and  that 
jiroduced,  equally  fatal,  but  of  which  it  is  not  necessary  for  the  court 
to  take  notice. 

It  is  true,  as  has  been  nrged  by  the  plff's.  counsel,  that  it  is  not 
necessary  to  set  out  the  whole  contract,  when  you  profess  only  to 

6 


42  Randel  vs.  Wright. 

set  out  in  substance;  but,  when  you  attempt  to  set  out  any  part  of  a 
contract  according  to  its  substance  and  legal  effect,  you  must  set  it 
truly;  and,  if  the  sense  or  meaning  of  that  part  of  the  contract 
be  altered,  then  it  cannot  be  the  same  as  that  alledged  to  have  been 
made.  The  proof  does  not  support  the  allegation;  there  is  a  vari- 
ance, because  the  sense  and  meaning  are  different.  It  is  enough  to 
set  out  as  inducement  to  the  action,  so  much  of  a  contract  as  will  en- 
able the  plff.  to  sustain  his  case :  yet  he  must  set  out  what  he  under- 
takes to  alledge  truly.  No  one  can  doubt  but  that  the  sense  and 
meaning  of  the  two  clauses  referred  to  the  court,  are  substantially 
variant  from  the  clauses  set  out  in  the  declaration.  They  are  not  the 
same,  and  the  variance  between  them  we  think  fatal. 

The  declaration  purports  to  set  out  the  schedule  of  prices  in  haec 
verba.  Here  the  plaintiff  hag  bound  himself  by  his  own  allegation,  to 
strict  proof  of  the  instrument.  A  mere  variance  in  the  spelling  of  a 
word,  if  the  word  be  changed  into  one  of  a  different  meaning,  will 
be  fatal.  But  in  this  case  substantial  and  material  variances  occur. 
In  this  contract,  the  parties  attach  very  different  meanings  to  the 
terms  "  section "  and  "  station,"  and  yet  the  declaration  purport- 
ing to  set  out  the  schedule  by  words  and  figures,  uses  one  for  the 
other.  The  contract  makes  a  distinction  between  "  back-drains " 
and  other  drains,  whereas,  the  declaration  confounds  them;  the 
prices  of  the  work  as  set  out  in  the  declaration,  vary  from  the  instru- 
ment produced ;  and  the  words  "  deepening  of  excavation  "'  are  used 
for  "  deficiency  of  excavation."  Even  if  this  schedule  had  been  set 
out  according  to  its  substance  and  legal  import,  and  not  by  its  tenor, 
these  variances  would  be  fatal;  because,  the  schedule  is  substantially 
different  from  that  alledged  in  the  declaration.  Section  cannot  here 
mean  station;  deepening  cannot  be  deficiency,  nor  one  price  mean 
another.  The  identity  of  this  instrument  is  thus  destroyed :  it  is  not 
the  same  as  that  described  in  the  declaration;  and  we  are  of  opinion 
that,  as  tlie  allegations  and  proofs  should  correspond  in  this  case  as 
in  other  cases,  the  instrument  offered  in  evidence  does  not  support 
the  declaration. 

Whenever  we  discover  a  variance  we  must  stop.  We  cannot  in- 
quire whether  it  be  a  small  or  an  important  variance,  or  whether 
they  be  numerous,  or  few,  it  is  sufficient  that  there  is  a  variance,  that 
it  is  a  departure  in  the  allegation  of  the  instrument,  from  the  instru- 
ment itself.  If  small  and  unimportant  variations  are  permitted  to 
pass  unnoticed,  where  are  you  to  stop?  What  will  be  considered  as 
important  variances?  We  know  no  better  rule  than  to  say  where 
there  is  a  variance,  great  or  small,  it  is  fatal.  We  are  therefore  of 
opinion  that  the  contract  offered  in  evidence  is  not  admissible." 

The  plff.  offered  another  contract  in  evidence  in  support  of  the 
second  count  in  his  narr,  which  was  objected  to  on  the  same  grounds, 
and  rejected  without  argument. 

The  rejection  of  these  contracts  terminated  the  cause,  and  a  non- 
suit was  entered. 

Judgment  of  nonsuit. 

Read,  Jr.,  and  Rogers,  for  plff. 

Frame  and  J.  A.  Bayard,  for  deft. 


Newbold  &  Craven  vs.  Wilkins.  43 

Xote,  The  plfF.  took  a  bill  of  exceptions  to  the  opinion  of  the 
court  rejecting  this  evidence,  and  carried  the  case  to  the  Court  of 
Appeals.  At  the  June  Term,  1832,  that  court  affirmed  the  decision. 
The  case  was  not  much  argued,  if  at  all,  in  the  Court  of  Appeals. 


WILLIAM  L.  NEWBOLD  and  THOMAS  CRAVEX  vs.  THOMAS 

W.  WILKINS. 

In  an  action  on  the  warranty  of  a  vessel  at  the  suit  of  the  owner,  the  master  is 
not  a  competent  witness  to  prove  that  the  vessel  was  lost  through  unsound- 
ness and  not  from  negligence. 

EuLE  to  show  cause  why  an  inquisition  should  not  be  set  aside. 

The  deft,  sold  a  vessel  to  plff.  for  $1,000,  and  warranted  her 
sound.  She  proved  to  be  unsound  and  not  sea  worthy.  Plfls.  had 
been  compelled  to  pay  several  sums  on  account  of  goods  being  dam- 
aged, and  the  vessel  finally  sunk.  An  action  was  brought  on  the 
warranty  and  judgment  went  by  default.  The  plffs.  issued  a  writ 
of  inquiry,  and  the  inquest  found  $20  damages.  This  was  an  appli- 
cation to  set  aside  this  inquisition. 

The  principal  ground  relied  on  by  plfEs.  was,  that  the  jury  rejected 
the  testimony  of  the  master  of  the  vessel  as  to  the  unseaworthiness 
of  the  vessel,  being  the  cause  of  her  loss.  It  was  proved  that  the 
vessel  was  lost  in  a  gale.  The  master  was  called  to  prove  that  she 
did  not  sink  from  stress  of  weather  or  negligence,  but  on  account  of 
her  unseaworthiness.  The  jury  thought  him  interested  by  reason 
of  his  liability  to  the  owners,  if  the  vessel  was  lost  by  his  default, 
and  therefore  rejected  his  testimony. 

The  question  here  was  whether  this  testimony  ought  to  have  been 
admitted. 

Plff's.  counsel  cited  1  Ph.  Ev.  38;  2  Esp.  N.  P.  347;  Petersdorf 
15,  p.  305,  ref.  7  T.  R.  601 ;  do.  60 ;  3  do.  27. 

The  interest  which  disqualifies  a  witness,  must  be  an  interest  in 
the  event  of  the  suit,  or  in  the  record;  where  it  will  be  evidence  for 
or  against  him  in  another  action.  An  interest  in  the  question  merely, 
will  not  render  him  incompetent. 

The  deft's.  counsel  insisted  that  the  master  of  the  vessel,  being 
liable  over  to  the  owners  for  negligence,,  had  such  an  interest  in  the 
matter,  as  rendered  him  incompetent.  The  result  of  this  suit,  in 
one  way,  would  place  him  in  a  state  of  security;  while,  in  the  other, 
lie  would  be  made  liable.  He  cited  Peake  N.  P.  Cases,  84,  Rothe- 
roe  vs.  Elton;  8  Taunt.  455;  Morish  vs.  Foote;  11  C.  L.  R.  510; 
■Kerrison  vs.  Coatesworth;  1  Esp.  Cases,  339,  Thompson  vs.  BirdJ 
2  Gallison,  48 ;  2  Stark.  Evid.  769.  And  see  3  Stark.  Ev.  1730,  where 
all  the  cases  are  referred  to. 

The  Court,  after  taking  time  to  consider  the  case,  discharged  the 
:aile. 

Rogers,  for  plff.     Rodney,  for  deft. 


44  W.  &  Philadelphia  Turnpike  Co.  vs.  Bush. 


WILMINGTON  and  PHILADELPHIA  TURNPIKE  COMPANY, 
Appellants  vs.  SAMUEL  BUSH,  Respondent,  p.  b. 

A  purchaser  of  stock  need  only  look  to  the  title  of  his  vendor  on  the  hooks  of 
the  company,  and  is  not  affected  by  previous  irregularity  in  the  transfers. 

Appeal  from  the  judgment  of  a  justice  of  the  peace.  Narr.  As- 
sumpsit for  dividends.     Plea,  non-assumpsit.     Issue. 

This  was  an  action  by  Bush,  for  the  dividends  on  nine  shares 
of  stock  in  this  turnpike,  standing  in  his  name  on  the  books  of  the 
company.  This  stock  originally  belonged  to  James  Eaves.  He 
placed  the  scrip  in  the  hands  of  John  Piatt,  as  an  indemnity  against 
some  suretyship;  for  which,  however,  John  Piatt  never  suffered  any 
loss.  John  Piatt  holding  the  stock  thus,  assigned  it  (irregularly,)  to 
James  Piatt.  There  was  never  any  transfer  on  the  books  of  the 
company,  from  Eaves  to  Piatt.  James  Piatt  assigned  the  stock  and 
transferred  it  regularly,  on  the  books  of  the  company  to  Potter, 
and  Potter  transferred  it  regularly  in  like  manner,  to  Bush,  the  plff. 
below.  The  company  has  paid  previous  dividends  on  this  stock  to 
Bush.  The  stock  was  attached  and  sold  as  the  property  of  James 
Eaves,  who  had  never  transferred  it  to  any  one  on  the  books  of  the 
company.  After  this  the  company  refused  to  pay  the  dividends  to 
Bush;  and  this  action  was  brought  to  recover  them.  The  regularity 
of  the  transfer  from  Potter  to  Bush,  by  Edward  Tatnall,  the  treasurer 
of  the  company,  a  special  agent  for  that  purpose,  was  proved. 

Verdict  for  plff.  subject  to  the  opinion  of  the  court  on  these  facts. 

J.  A.  Bayard,  for  respondent  plff.  below. 

This  stock  is  regularly  transferred  to  Bush  on  the  books  of  the 
company,  and  we  can  look  no  further  back.  He  is  legally  the  owner 
of  it.  9  Com.  Law  Rep.,  444,  Davis  vs.  Bank  of  England,  (450.) 
Bank  stock  transferred  on  a  forged  power  of  attorney,  the  purchaser 
is  entitled  to  recover  the  dividends  from  the  bank.  It  is  not  neces- 
sary to  look  beyond  the  title  of  the  seller  on  the  books  of  the  bank. 

Hamilton,  for  appl'ts. 

The  Company  is  not  bound  by  the  acts  of  its  officer  out  of  the  scope 
of  his  powers.  An  agent  must  act  within  his  authority.  Angel  and 
Ames  on  Corp.  332-3;  7  Cranch,  299,  305.  This  transfer  by  Mr. 
Tatnall,  was  not  within  his  authority,  and  the  company  are  not 
bound  by  it.  John  Piatt  was  never  a  member  of  this  corporation, 
and  he  could  not  legally  transfer  the  stock.  A  corporation  can  only 
act  in  pursuance  of  its  charter.     2  Cranch,  166;  D.  L.  630-3. 

Wales,  on  the  same  side. 

No  person  can  acquire  a  title  to  stock  except  under  a  regular  trans- 
fer on  the  books  of  the  Company.  The  person  who  buys  the  stock,  and 
not  the  company,  is  bound  to  look  into  the  title.  3  Day's  R.  544; 
2  Day's  R.  579,  583;  3  Wheat.  390;  2  8.  &  Rawle,  77;  17  do.  15; 
2  Wms.  77;  2  Atkyns.  12L 

Bayard,  in  reply. 

The  cases  cited  on  the  other  side  are  in  relation  to  the  first  assignee. 
But  this  is  the  case  of  subsequent  purchasers  under  regular  trans- 
fers, in  the  books  of  the  company.       Those  cases  would  apply  to 


W.   &  Philadelphia  Turnpike  Co.  vs.  Bush.  45 

Piatt  but  not  to  Bush,  who  derives  title  under  Potter  by  a  regular 
assignment.  Potter  also  had  a  regular  title  from  James  Piatt.  The 
(3ase  in  9  Com.  Law  Rep.  444,  lays  down  the  principle  as  We  have 
contend  for  it,  in  relation  to  subsequent  assignees.  We  have  only 
to  look  to  the  assignment  to  ourselves,  and  not  to  previous  owners 
of  the  stock.  There  is  no  individuality  in  the  shares  of  stock;  and 
it  cannot  be  traced  back  beyond  the  assignor  and  assignee. 

Cur.  ad.  vult. 
Nov.  Term,  1832." 

Harrington,  Judge,  now  delivered  the  opinion  of  the  court. 

This  is  an  action  for  dividends  on  stock  standing  on  the  books  of 
this  company  in  the  name  of  the  plff.  below.  His  title  to  the  stock 
is  derived,  under  a  regular  assignment  on  the  books  of  the  Company, 
from  Elijah  Potter  the  former  holder,  who  also  derived  it,  by  regu- 
lar assignment,  from  James  Piatt.  The  Company  has  paid  previous 
dividends  to  the  plif .  below ;  but  they  refuse  to  pay  any  further  divi- 
dends on  account  of  a  defect  in  the  title  of  James  Piatt,  a  former 
holder  of  the  stock. 

It  appears,  in  tracing  back  the  title  to  this  particular  stock,  that  it 
formerly  belonged  to  a  certain  James  Eaves,  who  placed  the  scrip  in 
"che  hands  of  John  Piatt,  without  any  transfer  on  the  Company's 
books,  as  an  indemnity  against  some  suretyship.  While  it  was  thus 
Jield  by  John  Piatt,  he  transferred  it  irregularly  to  James  Piatt,  who 
subsequently  passed  the  title  by  regular  transfer  to  Potter,  from 
whom  the  plff.  derived  by  regular  assignment.  It  appears  that  the 
liability  in  contemplation  of  which  the  scrip  was  placed  in  the  hands 
of  John  Piatt  never  arose ;  and  this  stock  has  now  been  attached  and 
sold  as  the  .property  of  James  Eaves. 

The  defts.  contend  that  the  title  has  never  been  divested  out  of 
Saves  by  any  of  these  transfers.  He  never  made  or  authorized  any 
transfer  on  the  books  of  the  Company,  and  no  holder  of  the  scrip, 
not  deriving  title  by  regular  transfer  from  Eaves,  could  himself 
]nake  such  an  assignment  as  would  divest  Eaves'  title.  That  not- 
Avithstanding  the  transfers  from  James  Piatt  to  Potter,  and  from  Pot- 
ter to  plff.,  were  made  in  due  form  in  the  Company's  books,  the 
])revious  irregular  assignments  had  not  divested  the  title  of  Eaves, 
nor  constituted  them  legal  members  of  the  corporation;  and,  conse- 
quently, that  their  transfers  can  have  no  operation  in  passing  the  title 
to  this  stock.  It  is  further  contended,  that  the  acts  of  the  treasurer 
of  this  company,  in  making  these  transfers,  are  not  binding  upon 
the  Company,  because  they  were  without  the  scope  of  his  authority. 

This  is  not  a  question  between  Eaves,  the  former  holder  of  this 
stock,  who  still  claims  title  to  it,  and  the  Company;  nor  is  it  be- 
tween Eaves  and  the  plff.  It  may  be,  that  these  irregular  transfers 
])ermitted  by  the  Company,  have  not  had  the  effect  to  divest  the 
title  of  Eaves,  but  it  does  not  follow  that  they  have  not  invested  the 
])lff.  with  a  legal  claim  both  to  the  stock  and  the  dividends.  The 
j'ormer  question  was  considered  in  the  case  of  Davis  vs.  The  Bank  of 
England,  9  Com.  L.  R.  444,  where  it  was  decided,  that  property 
in  stock  is  not  transferred  from  the  owner  by  being  placed  under  a 
iorged  power  of  attorney,  to  the  name  of  another  person  on  the  books 
of  the  bank;  but  the  second  proposition  is  not  decided,  that  the  as- 


46  W.  &  Philadelphia  Turnpike  Co.  vs.  Bush. 

signee  on  the  books  of  the  bank,  under  a  forged  power  of  attorney, 
does  not  acquire  the  legal  property  in  the  stock;  and  the  court  go 
out  of  their  way  in  order  to  prevent  public  alarm  to  express  an  opin- 
ion, that  the  bank  cannot  refuse  to  pay  the  dividends  to  subsequent 
purchasers  of  such  stock.  The  principle  of  that  opinion,  is  the  gist  of 
this  case.  The  charter  of  this  Company,  authorizes  transfers  to 
be  made  only  on  their  books.  They  keep  a  book  for  this  purpose, 
and  an  officer  to  attend  to  this  duty.  The  entry  on  their  books  of  an 
assignment  of  stock  to  any  individual,  is  evidence  of  that  individual 
being  the  legal  owner  of  that  particular  stock.  And  shall  a  subse- 
quent purchaser,  buying  on  the  faith  of  this  evidence,  be  told  by  the 
Company,  that  their  books  are  wrong;  and  that,  though  they  exhibit 
his  vendor  as  the  legal  owner  of  the  stock  he  has  purchased,  the  pro- 
perty is  in  fact  in  another  person?  The  assignable  nature  of  this 
kind  of  property  constitutes  its  chief  value;  it  would  go  far  to  des- 
troy this  character  if  the  purchaser  is  bound  to  look  any  further  back 
than  to  the  title  of  his  vendor.  And  what  better  evidence  can  he 
have  of  this,  than  the  books  of  the  corporation,  which  declare  him  to 
be  the  owner,  and  recognize  him  as  a  member  of  the  corporation.  If 
this  will  not  secure  a  purchaser  it  is  difficult  to  say  how  he  can  be 
secured.  In  most  cases,  it  will  be  impossible  for  him  to  trace  indi- 
vidual stock  back  to  the  first  proprietor,  for  in  the  frequent  changes 
of  this  property,  it  becomes  commingled  and  united  in  so  many  dif- 
ferent forms,  that  it  is  impossible  to  trace  the  course  of  its  aliena- 
tion. The  best  and  most  reasonable  principle,  therefore,  is  that  ex- 
pressed in  the  opinion  of  the  court  in  the  case  cited,  that  it  is  not 
necessary  for  the  purchaser  of  stock  to  look  further  for  the  title  of 
his  vendor,  than  the  books  of  the  Company.  Nor  is  this  imposing 
any  unreasonable  responsibility  on  the  Company.  In  all  transfers 
they  have  the  right  and  the  power,  to  inquire  fully  into  the  title  of 
the  person  proposing  to  make  the  transfer,  and  it  is  their  duty  to  do 
so.  In  this  case,  ordinary  prudence  on  the  part  of  the  turnpike 
company,  would  have  prevented  the  present  difficulty.  No  regular 
transfer  was  ever  made  on  their  books  from  Eaves  to  John  Piatt,  nor 
from  John  Piatt  to  James  Piatt.  It  was  apparent  to  them  therefore, 
for  their  own  books  showed  it,  that  at  the  time  they  permitted  James 
Piatt  to  transfer  to  Potter,  he  had  no  authority  to  do  so.  Had  the 
matter  rested  here,  no  liability  on  the  part  of  the  Company  to  sub- 
sequent purchasers  could  have  arisen;  but,  instead  of  inquiring  into 
the  title  of  James  Piatt,  thus  appearing  from  their  own  books  to  be 
defective,  as  in  ordinary  prudence  they  ought  to  have  done,  they 
permitted  him  to  make  a  regular  transfer  to  Potter,  and  allowed  Pot- 
ter to  assign  to  plfE.,  whom  they  have  recognized  as  the  legal  proprie- 
tor, by  the  payment  of  the  dividends.  Shall  they  now  dispute  his 
right?    We  think  not. 

We  confine  our  opinion  strictly  to  the  case  of  a  subsequent  purcha- 
ser, which  is  the  present  case.  Whether  Potter  would  stand  on  the 
same  gi-ound  we  do  not  decide,  and  there  is  a  clear  distinction  be- 
tween that  case  and  this.  Potter's  vendor  had  no  regular  assign- 
ment; and,  though  it  was  the  duty  of  the  Company  to  look  into  his 
title,  it  was  also  the  duty  of  Potter.  In  a  question,  therefore,  be- 
tween Potter  and  the  Company,  both  being  guilty  of  negligence,  and 


W.  &  Philadelphia  Turnpike  Co.  vs.  Bush.  47 

the  former  being  especially  bound  to  know  the  title  of  his  vendor, 
we  do  not  say  that  the  Company  would  be  bound.  The  contrary  is 
decided  in  2  P.  Wms.  77,  Hilyard  vs.  South  Sea  Co.  &  Keate,  as 
to  the  effect  of  a  forged  letter  of  attorne}'^  to  transfer  stock ;  but  this 
decision  does  not  appear  to  have  been  followed  for  Ashly  vs.  Black- 
well,  (Amhler,  503)  is  contra. 

On  the  whole,  we  think  the  plff.  entitled  to  recover  these  divi- 
dends, and  that  the  verdict  ought  to  stand. 

Judgment  for  plff.  below. 

Hamilton  and  Wales,  for  appl't. 

J.  A.  Bayard,  for  respd't.,  p.  b. 


COTJET  OF  ERRORS  AND  APPEALS. 

JXnSTE  TERM, 

1832. 


The  Lessee  of  MARTIN  FORD  vs.  JOHN  HAYS  and  MARGARET 
SUTTON,  Tenants  in  possession. 

The  lineal  warranty  of  tenant  in  tail,  in  possession,  descending  with  assets  of 
equal  value  to  the  heir  in  tail,  bars  him  from  claiming  the  lands  warranted. 

Whit  of  Error  to  the  justices  of  the  Supreme  Court. 

This  was  an  ejectment  for acres  of  land  in  Kent  county,  call- 
ed "  Jones'  fancy." 

William  Ford  the  grandfather  of  the  lessor  of  the  plff.,  being  seized 
of  the  lands  in  question,  by  his  will  duly  executed,  bearing  date  the 
15th  August,  1771,  devised  the  same  to  his  son  Daniel  Ford,  "  to  him 
and  his  heirs  of  his  body  lawfully  begotten,  or  assigns."  William 
Ford  died  seized,  and  Daniel  Ford  entered  under  this  devise;  and,, 
on  the  25th  Nov.  1784,  conveyed  the  land  by  deed  of  bargain  and 
sale'to  John  Harrington,  his  heirs  and  assigns  forever,  with  the  usual 
covenant  of  warranty  against  himself  and  his  heirs,  and  all  persona 
claiming  through  or  under  him  or  them.  This  deed  was  made  before 
the  passing  of  an  act  of  assembly  for  docking  estates  tail.  The  deed 
was  made  to  Harrington  for  a  money  consideration,  but  it  effected  an 
exchange  of  Jones'  fancy  by  Daniel  Ford,  with  the  heirs  of  William 
Ford,  Jr.,  his  brother,  for  certain  other  property  of  equal  value,  de- 
vised by  old  William  Ford,  to  his  son  William  Ford,  Jr.,  who  died 
intestate  and  without  issue.  The  exchange  was  thus  effected.  Da- 
niel Ford  conveyed  to  Harrington,  who  paid  the  consideration,  ac- 
cording to  the  recital  of  the  deed,  to  the  heirs  of  William  Ford,  Jr.; 
and  these  heirs,  to  wit:  Thomas  Ford  and  wife,  Martin  Ford  and 
wife,  and  William  Downs  and  wife,  in  consideration  thereof,  con- 
veyed to  Daniel  Ford  the  lands  so  devised  by  William  Ford,  Sen., 
to  William  Ford,  Jr.,  which  had  by  his  death  descended  to  them. 
Martin  Ford,  the  lessor  of  the  plff.,  is  the  oldest  son  of  Daniel  Ford 
and  is  now  the  owner,  by  descent,  of  the  lands  so  conveyed  to  his 
father.  Margaret  Sutton,  one  of  the  defts.,  was  the  daughter  of  Re- 
becca, one  of  the  children  of  old  William  Ford;  but  she  showed  no 
title  in  herself  except  the  presumption  arising  from  a  possession  of 
more  than  thirty  years.  The  other  deft,  was  her  tenant,  or  in  by 
her  permission.  At  the  trial  she  proved  that  the  lands  acquired  by 
Daniel  Ford  of  the  heirs  of  William  Ford,  Jr.,  in  exchange  for  Jones' 


Ford's  Lessee  vs.  Hays  &  Suttox.  49 

fancy,  were  of  equal  value  with  that  tract ;  that  he  died  intestate  and 
that  lands  of  equal  value  descended  from  him  to  the  lessor  of  the  plff. 
Exceptions  were  taken  to  the  charge  of  the  court  below;  and  the 
case  came  up  and  was  argued  here  by  Bates  for  plff.  in  error  and 
Ridgchj  for  deft.,  in  error.  All  the  Judges  were  present,  but  Har- 
rington did  not  sit,  having,  as  Chief  Justice  of  the  late  Supreme 
Court,  delivered  the  charge  excepted  to. 

Johns,  Jr.,  Chancellor,  delivered  the  opinion  of  this  court.  Af- 
ter stating  the  case,  he  said: 

"  In  this  cause,  which  has  been  fully  argued  and  discussed  by  the 
counsel  at  bar,  although  several  questions  have  been  presented,  the 
court  do  not  intend  to  express  any  opinion  except  as  to  the  point 
embraced  in  the  ?th  and  8th  exceptions:  this  course  we  adopt  be- 
cause we  consider  this  the  only  question  material  to  the  determina- 
tion of  the  cause,  and  as  we  have  all  come  to  one  conclusion  on  thia 
point,  the  others  are  in  consequence  thereof,  rendered  immaterial. 

The  seventh  exception  is  to  that  part  of  the  charge  of  the  court 
below,  which  declared  to  the  jurors  that  the  lineal  warranty  of  te- 
nant in  tail  in  possession,  descending  with  assets  of  equal  value  to 
the  heir  in  tail,  bars  and  estops  such  heir  from  claiming  the  land  so 
warranted  by  his  ancestor.  The  eighth  exception  is,  '  for  that  the 
said  justices  charged  the  said  jurors  in  such  manner  and  by  such 
words,  as  to  convey  to  the  said  jurors,  the  opinion  that  the  said  war- 
ranty contained  in  the  aforesaid  deed  from  Daniel  Ford  to  John  Har- 
rington, was  the  lineal  warranty  of  tenant  in  tail  in  possession,  de- 
scending to  the  heir  in  tail,  and  left  the  said  jury  under  that  impres- 
sion; whereas,  the  said  justices  should  have  charged  the  said  jurors 
as  to  the  character  and  effect  of  that  particular  warranty.^ " 

That  part  of  the  charge  referred  to  in  the  seventh  and  eighth  ex- 
ceptions, was  in  the  following  words : 

"  The  only  remaining  point  in  the  defence  which  the  court  have 
to  consider,  is  the  effect  of  the  warranty  contained  in  the  deed  from 
Daniel  Ford  to  John  Harrington.  The  defts.  counsel  contend  that 
this  covenant  of  warranty,  descending  on  Martin  Ford  the  plff.,  with 
lands  of  equal  value  descended  from  ihe  warranting  ancestor,  shall 
bar  him  from  claiming  these  lands  in  opposition  to  the  deed  of  his 
father.  The  court  have  no  doubt  that  at  common  law,  if  tenant  in 
tail  in  possession  conveyed  his  estate  tail,  with  warranty,  this  war- 
ranty shall  bind  his  heir  in  tail,  provided  assets  descend  to  that  heir 
from  the  warranting  ancestor  of  eqiial  value,  but  not  otherwise.  But 
it  is  contended  on  the  part  of  the  plff.  that  this  law  is  only  applicable 
to  feoffments  and  other  conveyances  at  common  law,  and  not  to  con- 
veyances operating  under  the  statute  of  uses,  such  as  a  deed  of  bar- 
gain and  sale.*  In  reply  to  this  the  deft's.  counsel  refer  to  our  Act 
of  Assembly,  1  Del.  Laws,  231,  sec.  4,  under  which  they  contend 
that  a  deed  of  bargain  and  sale  has  in  all  respects,  the  same  operation 
in  this  state  as  a  feoffment  in  England.     This  question  has  hereto- 

*Sed  vide.  Co.  Liit.  H.  &  But.  notes,  note  284.  A  bargain  and  sale 
with  warranty  may  work  a  discontinuance.  So  a  release,  covenant  tc 
stand  seized,  &c.    See  also,  Littleton,  sections  598-9,  600  and  601. 

7 


50  Ford's  Lessee  vs.  Hays  &  Sutton. 

fore  been  agitated  in  the  courts  of  this  state,  and  the  same  distinction 
has  been  talcen,  but  we  are  not  aAvare  that  there  has  ever  been  a  de- 
cision of  it.  The  language  of  our  Act  of  Assembly  in  regard  to  the 
operation  of  deeds  of  bargain  and  sale  is  very  comprehensive.  It 
declares  that  all  deeds  and  conveyances  made,  &c.,  '  shall  be  of  the 
same  force  and  effect  here,  for  the  giving  possession  and  seizen,  and 
niaice  good  the  title  and  assurance  of  the  lands,  tenements  and  here- 
ditaments, as  deeds  of  feoffment  with  livery  of  seizin,  or  deeds  en- 
rolled in  any  of  the  king's  Courts  of  Record  at  Westminster,  are  or 
shall  be  in  that  part  of  Great  Britain  called  England.'  In  2  Yeates, 
509,  there  is  a  case  of  ejectment  in  which  one  of  the  defences  set  up 
was  the  warranty  of  the  plff's.  ancestor,  contained  in  a  deed  of  bar- 
gain and  sale,  with  assets  descended  to  the  heir,  which  was  insisted 
upon  as  a  bar  to  the  plff's.  claim;  to  which  he  replied  this  same  dis- 
tinction between  conveyances  at  common  law,  and  those  taking  ef- 
fect under  the  statute  of  uses.  But  the  court  decided  that  the  plff. 
was  barred.  The  question  in  the  case  of  the  Lessee  of  Fisher  and 
Caton  vs.  Raymond,  et  al.,  which  has  been  referred  to,  was  very 
different  from  the  question  here.  That  was  a  case  of  the  alienation 
of  tenant  for  life  with  warranty  of  herself  and  husband ;  and  the  ques- 
tion was,  whether  the  remainderman  was  bound  by  the  warranty  of 
tenant  for  life;  and  this  depended  upon  the  question,  whether  the 
statute  of  4th  and  5th  Ann,  ch.  IG,  was  in  force  in  this  state.  That 
statute  declares  that  no  such  warranty  shall  bind  the  remainderman, 
and  the  court  having  decided  that  that  statute  was  in  force  in  this 
state,  the  defence  was  of  course  abandoned.  (This  was  a  decision  of 
the  Supreme  Court,  Ch.  Jus.  Johns  presiding.  The  provisions  of 
4  and  5  Ann,  ch.  16,  have  since  been  expressly  enacted  by  Stat. 
Dig.  53.)  Upon  the  whole,  the  court  are  of  opinion  that  the  lineal 
warranty  of  a  tenant  in  tail  in  possession,  descending  with  assets  of 
equal  value  to  the  heir  in  tail,  bars  and  estops  such  heir  from  claim- 
ing the  lands  so  warranted  by  his  ancestor.'  " 

If  the  deed  of  bargain  and  sale  from  Daniel  Ford  to  John  Harring- 
ton, dated  November  25th,  1784:,  containing  a  special  warranty 
upon  his  death  leaving  assets  of  equal  value  to  descend  to  his  heir, 
bars  the  estate  tail,  or  estops  the  heir  in  tail,  then  the  title  of  the 
lessor  of  the  plf^.  is  destroyed,  and  there  is  an  end  to  the  present  action. 
In  considering  this  question  the  court  recognize  the  law  to  be  as  laid 
down  in  2  Blac.  Com.  301,  that  a  lineal  warranty  by  tenant  in  tail 
descending  with  assets  is  a  bar  to  the  issue  in  tail :  and  that  tenant  in 
tail  in  possession,  without  the  forms  of  a  fine  and  recovery  may  in 
some  cases,  make  a  good  conveyance  in  fee  simple  by  superadding  a 
warranty  to  his  grant;  which,  if  accompanied  with  assets,  bars  his 
own  issue.  We  therefore  do  consider  that  the  deed  of  bargain  and 
sale  with  warranty,  dated  the  25th  Nov.,  1784,  executed  by  Daniel 
Ford,  the  tenant  in  tail  in  possession,  conveying  the  land  and  premi- 
ses to  John  Harrington,  his  heirs  and  assigns,  (the  same  having  been 
acknowledged  and  recorded)  did,  by  reason  of  the  heir  in  tail  having 
by  descent  from  the  grantor  his  ancestor  real  assets  of  equal  value, 
har  and  estop  the  heir,  whose  right  of  entry  being  thereby  taken  away, 
he  cannot  upon  any  principle  maintain  his  action  of  ejectment. 

We,  therefore,  are  of  opinion  the  court  below  did  not  err  in  their 


Booth's  Ex'r.  vs.  Stockton's  Ex'ii.  51 

( harge  to  the  jury,  upon  the  point  as  stated  in  the  appellant's  seventh 
and  eighth  exceptions;  and  that  tiie  judgment  in  the  court  below  must 
])e  affirmed  with  costs."  2  Blac.  Com.  IIG,  203;  Shep.  Touch. 
188;  4  Cruise  435,  tit.  32,  ch.  24,  s.  25;  1  ditto  110;  4  do.  439; 
Litt.  712;  2  Co.  Litt.  373;  2  Harr.  &  M'H.  418  441  Pink. 
Arg't.;  2  Burr.   704,   715;  3  Co.  Litt.   333  a;   1   Del.  Laws,  221; 


Digest  53. 

Bates,  for  plff.  in  error. 
Ridgely,  for  defts.  in  error. 


Judgment  affirmed. 


JxUIES  BOOTH'S  Ex'r.  vs.  JOHN  STOCKTON'S  Ex'r. 

Construction  of  the  term  "  settlement  under  the  hand  of  the  party "  in  the 

Act  of  Limitations  of  1793. 
What  '"mutual  and  running  accounts"  are  not  barred' by  the  statute. 

Writ  of  error  to  the  Supreme  Court,  in  and  for  Newcastle  county. 

Johns,  Jr.,  Chancellor,  did  not  sit  on  account  of  his  connexion  with 
he  respondent. 

This  was  an  action  of  assumpsit  brought  by  James  Booth,  now  de- 
ceased, against  John  Stockton,  also  deceased.  The  declaration  con- 
tained the  usual  counts,  and  also  a  count  on  the  following  instrument 
of  writing.  "  We  mutually  promise  to  settle  the  subsisting  accounts 
ind  claims  between  us,  and  to  pay  the  balance  that  may  be  due  upon 
such  settlement.  Nov.  5,  1807.  (Signed)  James  Booth,  John 
Stockton."  The  deft,  pleaded  non-assumpsit,  &c.,  and  the  Act  of 
Limitations.  The  pllf.  replied  generally,  and  took  issue.  On  the 
trial,  the  jury  found  for  the  deft,  under  the  charge  of  the  court,  upon 
;he  plea  of  the  Act  of  Limitations. 

Mr.  Bayard,  for  plff.  in  error. 

The  material  questions  are,  1st.  Was  this  action  barred  by  limi- 
tation? We  have  declared  on  this  written  agreement  and  mutual 
promise,  which  is  in  our  view  a  promissory  note,  at  least  so  far  as 
regards  limitation.  It  is  true,  the  amount  is  to  be  ascertained  on  a 
settlement,  but  this  does  not  affect  the  case.  The  distinction  is  be- 
tween an  uncertain  amount,  and  an  unliquidated  amount.  The  lat- 
ter is  good  as  a  promissory  note.  Before  our  late  act  of  assembly, 
there  was  no  limitation  to  a  promissory  note.  The  act  don't  bar  in 
an. action  on  the  case  against  a  sheriff  for  money  levied,  &c.,  because 
the  action  is  founded  on  a  record:  don't  bar  in  an  action  of  debt: 
and  there  is  no  difference  whether  you  declare  in  case  or  in  debt 
upon  the  record.  Any  agreement  under  hand  takes  the  case  out  of 
the  act.  This  was  the  only  object  of  the  agreement  signed  by  Mr. 
Booth  and  Mr.  Stockton. 

Second.  This  paper  is  an  acknowledgment  oi  an  open  and  mutual 
account,  and  comes  within  the  exception  of  merchants'  accounts; 
which,  according  to  the  decisions,  embraces  any  running  and  mutual 
accounts  between  persons  not  merchants.  Peake  N.  P.  121;  3  Bac 
4.h.  508;  Bull.  N.  P.  149,  150. 


62  Booth's  Ex'e.  vs.  Stockton's  Ex'r. 

Mr.  Frame,  for  respondent. 

There  is  no  count  except  the  first  that  has  any  pretension  to  being 
founded  on  this  agreement..  They  are  the  usual  counts  for  money 
had  and  received,  &c.,  and,  with  regard  to  them,  the  effect  of  this 
writing  can  be  nothing  more  than  a  common  acknowledgment,  to 
take  a  case  out  of  the  Act  of  Limitations.  But  the  invariable  rule 
is,  that  this  acknowledgment  must  be  within  three  years  before  suit 
brought,  i.  e.,  within  the  time  at  which  the  statute  would  run,  whe- 
ther that  be  three  or  six  years.  The  promise  is  not  relied  on  as  a 
cause  of  action,  but  only  as  sufficient  to  stop  the  running  of  the  stat. 
and  it  must  be  within  the  period  of  limitation.  (Admitted  by  Mr. 
Bayard.)  This  instrument  was  dated  in  18D7,  and  the  action  brought 
in  1827  —  twenty  years,  less  seven  days.  The  case  in  3d  Bacon 
was  an  action  of  debt  on  a  record,  which  the  statute  expressely  ex- 
cepts. In  the  action  of  debt  the  record  must  be  set  out.  But  the 
statute  may  be  pleaded  in  assumpsit  even  for  the  same  jclaim.  The 
act  of  assembly  speaks  of  actions  founded  on  promissory  notes,  &c. 
where  the  note  is  the  foundation  of  the  action ;  and  not  as  in  assump- 
sit where  the  general  liability  is  the  foundation,  and  the  writing 
merely  evidence.    Bal.  on  Lini.  30,  83. 

Second.  Are  these  mutual  open  and  running  accounts  to  prevent 
the  statute  from  running.  I  don't  controvert  the  doctrine  that  this 
exception  extends  to  others  than  merchants ;  but  it  only  applies  to 
open  and  running  accounts,  and  accounts  running  too  on  both  sides 
up  to  some  period  within  three  years  of  the  commencement  of  the 
suit.  6  T.  Rep.  189.  In  this  case  there  arc  no  items  within  nine- 
teen years. 

This  agreement  is  not  within  the  saving  clause  of  our  act.  It  is 
not  a  settlement,  nor  is  it  a  promissory  note.  The  requisites  of  a 
promissory  note  are  1st.  that  it  must  be  payable  at  all  events  and 
not  on  a  contingency ;  and  secondly,  that  it  must  be  for  the  payment 
of  money  only.  Chitty  on  Bills,  55,  58.  This  writing  is  not  for 
the  payment  of  any  certain  sum,  nor  certainly  for  the  payment  of 
any  sum;  and  it  is  for  the  doing  of  another  act,  a  settlement,  which 
cannot  even  be  enforced.  It  is  therefore  contingent  and  executory. 
Executory  agreements  are  always  within  the  statute. 

With  regard  to  the  first  count.  It  is  said  to  be  founded  on  this 
agreement.  The  first  branch  of  this  agreement  is  to  settle  accounts; 
the  second,  to  pay  any  sum  which  may  be  found  due.  Now  the  first 
branch  is  undoubtedly  an  executory  contract,  and  nothing  in  the  na- 
ture of  a  promissory  note,  and  this  is  the  only  part  of  the  agreement 
declared  on  in  the  first  count,  for  the  breach  there  assigned  is,  that 
Stockton  never  did  or  would  settle;  and  the  failure  to  pay  a  sum  of 
money  that  he  had  promised  to  pay  on  settlement  could  not  be  the 
foundation  of  an  action  in  which  the  breach  assigned  is,  that  there 
never  was  a  settlement. 

Third.  As  to  the  broad  question,  whether  a  promissory  note  was 
not  barred  by  our  Acts  of  Limitation,  even  before  the  passage  of  the 
late  act,  which  expressly  bars  them.  The  question  has  been  treat- 
ed as  settled;  and  I  would  not  revive  it  but  for  its  extreme  clearness. 
It  depends  solely  upon  the  principle,  that  if  a  statute  which  repeals 
another  be  itself  repealed,  it  operates  as  a  revival  of  the  first  law.     1 


Booth's  Ex'k.  is.  Stockton's  P]x"r.  53 

Blac.  Com.  90;  13  Co.  K.  7;  1  Del.  L,  229;  Id.  525,  2  vol.  1031; 
Id.  1133.  If  this  be  law,  the  decision  which  is  said  to  have  been 
made  by  our  Court  of  Appeals,  and  which  was  made  without  argu- 
aicnt  or  much  consideration,  is  certainly  erroneous. 

Bayard,  in  reply. 

I  understand  the  case  in  Ball,  on  Lim.,  differently.  In  debt,  the 
act  cannot  be  pleaded;  in  case  the  act  may  be  pleaded,  but  it  is  no 
bar  if  the  plff.  reply  matter  not  within  tlie  statute.  The  objection 
that  this  instrument  is  not  declared  on  is  too  late.  No  such  objec- 
tion was  made  below,  and  the  paper  Avas  given  in  evidence.  There 
is  a  promise  to  settle  and  to  pay;  the  averment  is  of  a  refusal  to  set- 
tle and  that  a  sum  was  due ;  thence  arises  an  implied  assumpsit,  for 
which  the  action  is  sustainable.  The  count  is  strictly  on  the  agree- 
ment averring  facts  sufficient  to  sustain  the  action. 

The  question  whether  the  Act  of  Limitations  would  bar  a  promis- 
sory note  is  not  open.  It  has  been  long  since  decided  by  the  Court 
of  Appeals,  and  acted  on  as  the  law. 

There  is  no  contingency  to  vitiate  this  note;  it  is  merely  an  unas- 
certained amount;  at  all  events,  it  is  an  agreement  within  the  equity 
of  the  statute.  A  promissory  note  to  pay  out  of  a  particular  fund  is 
not  a  negociahle  note,  but  it  is  not  barred  by  the  statute;  and  on  the 
equity  of  the  statute  any  agreement  or  promise  in  writing  to  pay  mo- 
ney,  though  not  strictly  a  promissory  note,  is  not  barred  by  limita- 
tions. 

Clayton  Ch.  Jus.  of  the  Superior  Court,  delivered  the  following 
opinion  of  this  Court : 

"  This  is  an  action  of  assumpsit  brought  by  James  Booth,  dec'd., 
against  John  Stockton,  dec'd.  The  first  coimt  in  the  declaration  is 
upon  the  following  promise  in  writing:  "We  mutually  promise  to 
settle  the  subsisting  accounts  and  claims  between  us,  and  to  pay  the 
balance  that  may  be  due  upon  such  settlement.  Nov.  5,  1807.  (Sign- 
ed) James  Booth,  John  Stockton."  The  other  counts  are  the  com- 
mon counts  for  work  and  labor,  &c.  To  this  declaration  the  deft, 
pleaded  the  stat.  limitation  and  the  pllf.  replied  generally.  The  suit 
was  brought  29th  Oct.  1827.  This  general  replication  was  proper 
enough  to  all  the  counts  but  the  first,  but  if  it  was  intended  to  rely 
upon  the  objection  to  the  plea  of  the  stat.  lim.  that  this  was  one  of  the 
exceptions  out  of  the  statute,  or  in  other  words,  that  the  stat.  was  no 
bar  to  a  suit  upon  this  written  promise,  the  plff.  should  not  have  re- 
plied to  the  plea  to  this  count;  but,  if  he  intended  to  raise  the  question 
of  law,  he  ought  to  have  demurred.  By  replying  he  joined  issue 
upon  a  more  question  of  fact:  the  deflt.  insisting  on  the  one  hand 
that  he  had  not  promised  within  three  years,  and  the  plff.  affirming 
that  he  had.  No  advantage  was  taken  of  this  in  the  argument  either 
in  the  court  below  or  here ;  and  we  are  willing  to  decide  the  case 
upon  the  grounds  upon  which  it  was  placed  in  argument  before  us. 

We  shall  not  attempt  to  shake  the  authority  of  the  case  of  Wil- 
liams vs.  Pritchard's  adm'r-.,  decided  in  the  late  High  Court  of 
Errors  and  Appeals,  in  which  it  was  determined  that  we  have  no 
stat.  of  limitations  in  this  State  extending  to  promissory  notes,  or  set- 
tlements under  the  hands  of  the  parties;  and,  altho'  that  decision 
may  not  have  been  entirely  satisfactory  to  the  bar,  yet  we  consider 


54  Booth's  Ex'r.  vs.  Stockton's  Ex'r. 

it  not  so  indefensible  as  to  call  upon  us,  were  we  of  a  different  opi- 
nion, to  over-rule  it  if  the  ease  were  again  before  us.  But  that  ease, 
or  one  like  it,  is  not  before  us.  The  present  is  clearly  distinguisha- 
ble from  that.  No  one  can  seriously  think  that  the  instrument  de- 
clared on  here  is  either  a  promissory  note,  or  a  settlement  under  the 
hand  of  tlie  party.  It  has  no  one  q:uality  of  a  promissory  note;  it  is 
not  a  settlement  under  the  hand  of  the  party,  as  we  understand  those 
terms.  It  is  a  mere  engagement  to  settle.  It  is  declared  on  and 
treated  as  such  by  the  plff.  The  breach  assigned  is  for  not  settling. 
It  is  not  for  not  paying  a  balance  found  due  on  settlement.  It  is  not 
pretended  that  a  settlement  had  taken  place  between  the  parties  so  as 
to  authorize  a  suit  upon  this  engagement  for  the  non-payment  of  the 
balance  found  due. 

We  confess  that  we  cannot  see  the  policy  at  this  time  of  day  of 
placing  promissory  notes,  or  any  other  engagements  in  writing  for 
the  payment  of  money,  upon  a  different  footing,  as  it  regards  the 
limitation  of  suits,  from  bonds  and  bills  obligatory.  They  are 
equally  free  from  all  danger  arising  from  the  loss  of  the  evidence  of 
payment;  for  no  prudent  man  would  discharge  a  bond,  or  other  en- 
gagement in  writing  for  the  payment  of  money,  without  getting 
possession  of  the  evidence  of  his  indebtedness;  and  thus,  being  in 
possession  of  that  evidence,  it  is  in  his  power  to  cancel  it  or  to  do 
with  it  as  he  pleases.  It  is  no  longer  in  the  possession  of  his  adver- 
sary to  found  a  suit  upon ;  and,  therefore,  one  may  be  as  safely  left 
to  the  legal  presumption  of  payment  after  a  lapse  of  twenty  years  as 
the  other.  But  when  you  come  to  apply  this  reasoning  to  every 
written  acknowledgment  of  a  subsisting  antecedent  debt,  it  would 
clearly  be  within  the  mischiefs  intended  to  be  obviated  by  the  statutes 
of  limitations.  We  will  take  the  case  before  us  as  an  illustration  of 
our  reasoning.  Suppose  that  soon  after  the  date  of  this  writing  Mr. 
Booth  and  Mr.  Stockton  had  come  to  a  settlement  of  all  their  ac- 
counts and  one  of  them  had  been  found  indebted  to  the  other;  and 
suppose  him  to  discharge  the  balance;  what  would  have  been  the 
conduct  of  the  parties  in  relation  to  the  matter?  He  against  whom 
the  balance  was  found  due,  upon  paying  it,  would  have  taken  a  re- 
ceipt upon  the  accounts  as  settled.  But  would  he  ever  have  thought 
of  asking  for  this  written  promise  to  settle  ?  We  apprehend  not ;  and 
he  never  would  have  dreamed  that  he  would  be  liable  to  a  suit  on  it 
for  twenty  years  afterwards.  Or,  to  state  a  case  which  must  be  of 
almost  daily  occurrence.  A  merchant  draws  off  his  account  and 
sends  it  to  his  customer  for  payment;  the  latter  receives  it  and  writes 
a  letter  saying  that  he  has  received  the  account,  that  it  is  not  then 
convenient  to  pay  it,  but  that  he  will  do  so  in  a  short  time.  In  a 
few  days  he  goes  and  discharges  the  account  and  takes  a  receipt  upon 
it.  No  one  under  these  circumstances  would  think  of  asking  for  the 
letter  to  be  delivered  up,  or  that  it  might  be  evidence  in  future  against 
him.  Yet  if  the  principle  contended  for  in  this  case  be  correct  the 
merchant  at  any  time  afterwards,  within  twenty  years,  when  his  cus- 
tomer might  be  dead,  his  receipt  lost  or  mislaid,  and  no  one  remain- 
ing ac(|uainted  with  the  circumstance  and  capable  of  explaining  it, 
might  bring  his  action,  produce  his  books  and  exhibit  this  written 
acknowledgment  of  the  debt,  and  what  would  prevent  his  recovery? 


Xewbold  vs.  Ridgeway  &  Newbold,  55 

The  case  before  us  is  certainly  not  within  the  letter  of  the  exception 
to  tlie  statute,  for  it  is  neither  a  promissory  note  nor  a  settlement 
under  the  hand  of  the  party;  nor  is  it  within  the  equity  of  the  ex- 
ception, that  is,  within  the  policy  and  scope  of  the  law.  We  would 
not  confine  ourselves  strictly  within  the  letter  of  the  statute,  but  any 
case  coming  clearly  within  its  spirit  might  be  recognized  as  one  not 
barred.  The  rule  which  we  would  lay  down  would  be  this:  any  en- 
gagement in  writing  for  the  payment  of  money  which  of  itself 
vould  be  the  foundation  of  an  action  without  needing  proof  aliunde 
to  support  it,  would  be  an  exception  to  the  operation  of  the  statute; 
but  wherever  such  proof  is  needed;  wherever  you  must  support  your 
action  by  oral  proof,  it  is  as  much  within  the  mischief  designed  to 
be  remedied  by  the  act  as  if  the  whole  case  depended  on  oral  testi- 
mony and  no  writing  existed.  We  are  not  disposed  to  comprehend 
V  ithin  this  rule  any  written  engagements  for  the  performance  or  non- 
performance of  acts  collateral  to  the  payment  of  money,  because  such 
cases  would  evidently  fall  within  the  same  mischief. 

The  only  operation  of  a  written  acknowledgment  of  an  antecedent 
debt  is,  for  the  time,  like  any  other  acknowledgment,  to  take  the 
case  out  of  the  statute;  but  the  operation  of  the  statute  again  imme- 
c:  lately  commences  and  will  be  a  bar  in  three  years. 

With  regard  to  the  other  ground  taken  by  the  plff's.  counsel,  that 
this  is  the  case  of  mutual  and  running  accounts  between  the  parties, 
\-'e  admit  that  this  writing  docs  prove  that  there  were  such  mutual 
find  running  accounts  between  the  parties  at  the  time;  and  we  ac- 
knowledge that  mutual  and  running  accounts  are  not  barred  by  the 
ftat.  so  long  as  they  continue  open  and  current.  In  this  case  the 
parties  had  no  dealings  or  transactions  between  them  after  the  5th  of 
Xov.  183T;  there  is  no  item  of  account  occurring  after  that  time;  it 
A/as  therefore  no  longer  an  open  or  current  account,  and  is  barred 
after  the  lapse  of  three  years. 

We  are  therefore  all  of  opinion  that  the  judgment  below  ought  to 
be  affirmed. 

Judgment  affirmed. 

/.  A.  Bayard,  for  plff. 

Frame,  for  resp't. 


EUPHEMIA  NEWBOLD  vs.  RIDGEWAY  &  NEWBOLD. 

Damstges  for  arrears  of  dower  can  be  recovfred  against  a  purchaser  only  from 
the  time  of  liis  title  accrued. 

Appeal  from  Chancery.     Newcastle  County. 

Black,  A.  J.  did  not  sit,  he  having  been  of  counsel  below. 

This  was  a  bill  filed  by  Euphemia  Newbold,  against  Anthony  T. 
^'ewbold  the  heir,  and  Jacob  Ridgeway,  a  purchaser,  for  an  assign- 
ment of  dower,  and  for  damages  from  the  death  of  her  husband. 

Barzilla  Newbold,  the  husband,  died  seized  of  the  land  in  Feb. 
1.815,  and  devised  it  by  will  to  his  two  sons  Anthony  T.  and  Daniel 
Newbold.     The  heirs  entered ;  and,  by  deed  dated  4  June,  1822,  made 


56  Newbold  vs.  Kidgeway  &  Xewbold. 

l)artition.  On  the  27  Jan.  1825,  Anthony  T.  Newbold  executed  a 
iHorlga^i^o  of  the  jjremises  to  Jacob  Ridgeway  for  $6,003.  In  Dec. 
LS'^T,  the  property  was  sold  by  proceedings  under  this  mortgage 
and  purchased  by.Kidgeway.  The  bill  claims  dower  and  damages 
to  the  amount  of  one-third  of  the  rents  and  profits  from  the  death  of 
Barzillu  Xewbold,  in  1815.  The  decree  is  for  an  account  of  the 
rents  and  profits  of  the  land  from  the  25th  March,  1827,  the  com- 
mencement of  the  year  in  which  Eidgeway's  title  accrued.  The  ap- 
peal is  from  this  decree. 

Mr.  Ii(Hjers,  for  appellant. 

The  single  question  is,  whether  the  complainant  is  entitled  to  the 
rents  from  the  death  of  her  husband,  or  only  from  the  time  def t*l. 
title  accrued.  At  common  law,  the  widow  was  not  entitled  to  any 
damages.  By  the  statute  of  Merton  20  Hen.  '3rd,  damages  were 
given  to  the  value  of  the  whole  dower  from  the  death  of  the  hus- 
band ;  and  this  whether  against  the  heir  or  his  alienee,  if  the  husband 
died  seized.  If  the  husband  does  not  die  seized,  damages  can  only 
be  recovered  against  his  alienee  from  the  demand.  Parhe's  Law  of 
Dower,  301,  330-1;  Bull.  N.  F.  116;  Co.  Litt.  33  a;  2  Bra.  Ch.  R. 
620.  The  law  gives  dower  out  of  the  estate  of  the  husband  and 
the  mesne  profits  from  his  death.  1  Mad.  ch.  242;  6  Johns  R.  290, 
HitchcocJc  and  wife  vs.  Harrington.  A  sale  by  the  heir  will  not 
prevent  the  widow  from  recovering  damages  from  the  death  of  the 
ancestor.     5  Johns  C.  R.  483. 

^Ir.  Wales,  for  Ridgeway,  one  of  the  respondents. 

We  contest  the  right  of  Euphemia  Xewbold,  to  recover  any  dama- 
ges as  against  us.  Barzilla  and  John  Xewbold,  were  tenants  in  com- 
mon of  800  acres  of  land.  Barzilla  died  and  left  his  undivided 
moiety  to  his  two  sons,  Anthony  T.,  and  Daniel  Xewbold,  making 
a  provision  for  his  wife.  She  renounced  and  thus  became  entitled  to 
dower  in  one-third  of  the  moiety  of  this  land  held  in  common  and 
undivided.  Xo  subsequent  partition  can  affect  her.  After  her  re- 
nunciation, John  Xewbold  and  Anthony  T.  and  Daniel  Xewbold, 
the  heirs  of  Barzilla  made  an  amicable  partition  of  the  lands  so  held 
in  common.  The  widow  now  goes  for  dower  in  that  part  only  of 
the  land  laid  off  to  Anthony  T.,  whereas  she  ought  to  have  sought 
dower  out  of  the  whole  estate  of  her  husband  Barzilla,  being  an  un- 
divided moiety  of  the  lands  held  in  common.  2  Bac.  Ah.  B.  Tit. 
Dower,  s.  3,  p.  127,  (366;)  Mitf'd.  148,  158. 

This  is  clearly  a  bill  for  a  part  only  of  dower;  and  dower  must  be 
laid  off  out  of  the  whole  of  an  estate  held  in  common:  dower  out  of 
a  part  gives  no  certain  estate.  So  decided  in  the  cas3  of  Waples  and 
^Yaples,  in  Sussex,  per  Chancellor  Ridgely. 

But  as  we  are  not  appellants,  this  defence  can  avail  us  only  so  far 
as  to  get  an  affirmance  of  the  present  decree. 

Second.  We  contend  that  damages  can  only  be  given  against  Ridge- 
way from  the  time  of  his  title  accrued :  that  they  must  be  apportioned 
among  the  several  holders  of  the  land  according  to  the  time  of  th  -ir 
enjoyment.  4  John.  C.  C.  694;  3  Atk.  131;  3  Brown  264;  1  Paige 
C.  R.  192,  Russel  vs.  Austin.  Arrears  of  dower  against  the  pur- 
chaser of  the  premises  in  which  dower  is  claimed,  can  only  br  *.  - 


Roberts  et  al.  vs.  Broo.al  et  al.  57 

covered  from  the  time  of  the  purchase.  Pei-  Chr.  Walworth.  Bill 
for  dower  and  damages  against  a  purchaser.  Decree  for  damages 
confined  to  the  date  of  deft"s.  purchase.     Diclc  vs.  Doughten,  post. 

Mr.  Rogers,  in  reply. 

An  objection  has  been  made  for  want  of  proper  parties,  John  Xew- 
bold  the  other  tenant  in  common,  not  being  included.  This  ques- 
tion was  settled  in  the  court  below  on  demurrer.  'J'his  proceeding 
is  only  for  dower  out  of  that  particular  part  of  the  land  of  Barzilla 
Xewbold,  that  was  assigned  to  Anthony  T.  A'ewbold. 

The  general  principles  of  the  doctrine  I  have  advanced  are  not 
denied  as  applicable  at  law,  and  equity  follows  the  law. 

The  decree  of  the  Court  of  Chancery  was  affirmed. 

Rogers,  for  appellant. 
W«Jes,  for  respondent. 


THOMAS  EGBERTS,  et  al.  vs.  JAMES  M.  BROOM,  et  al. 

Can  trust  money  be  followed  into  land  upon  evidence,  as  against  judgment 
creditors?     Quere. 

When  the  conveyance  is  to  the  trustee  without  noticing  the  trust,  the  applica- 
tion of  the  trust  fund  should  be  clearly  proved. 

Appeal  from  the  Court  of  Chancery  for  Newcastle  county. 

"  Jacob  Broom  by  his  will,  ordered  his  executors  to  sell  his  real 
estate,  and  from  the  proceeds,  together  with  the  balance  of  his  per- 
sonal estate  after  payment  of  del)ts  and  specific  legacies,  to  create  a 
fund  to  be  applied  and  distributed  as  follows :  1st.  To  invest  so  much 
thereof  as  the  executors  should  think  necessary  to  yield  $600  per 
annum,  to  be  paid  by  them  to  his  wife;  the  residue  of  the  said  fund 
to  be  applied  and  distributed  as  follows :  one-seventh  to  J.  ^I.  Broom 
his  son;  one-seventh  to  his  daughter  Ann  Littler,  and  five-sevenths 
to  trustees,  to  liold  one-seventh  for  the  use  of  his  daughter  Hetty  W. 
Lyon,  tbje  proceeds  to  be  paid  to  her  separate  use  during  her  life; 
and  after  her  death,  to  be  paid  to  her  children  or  legal  representa- 
tives; one-seventh  for  the  use  of  his  daughter  Sarah  Roberts,  the 
proceeds  to  be  paid  in  the  same  manner;  one-seventh  for  the  use  of 
John  and  Rachel  Roberts,  the  children  of  his  deceased  daughter  Eli- 
zabeth, to  be  paid  to  them  when  they  severally  arrive  at  age,  ami  in 
^he  mean  time,  the  proceeds  to  be  paid  to  their  maintenance  and 
ediicatiou;  one-seventh  for  the  use  of  his  son  Jacol)  P.  Broom,  tlie 
proceeds  to  be  paid  to  him  during  his  life,  and  after  his  death  the 
said  one-seventh  to  be  paid  to  his  children  or  representatives,  and 
he  remaining  one-seventh  for  the  use  of  his  daughter  Livinia  R. 
■iroom,  to  be  paid  in  the  same  manner. 

He  constituted  the  said  James  M.  Broom  sole  executor  and  trus- 
tee. The  testator  died  in  1810.  J.  M.  Broom  took  out  letters; 
apd,  in  execution  of  the  will,  sold  all  the  real  estate  so  directed  to 
lie  sold.  He  passed  sundry  administration  accounts,  the  last  of  which 
is  on  the  7th  May,  1816,  and  shows  a    balance    in   his    hands    of 

8 


58  Roberts  et  al.  vs.  Broom  et  al. 

^52,925  48;  and  also  a  trustee  account  on  the  29th  Nov.  1816,  show- 
ing a  balance  of  $ 

The  said  James  M.  Broom  purchased  sundry  tracts  of  land  and 
other  real  property  in  Pennsylvania,  Delaware,  Maryland  and  Ohio, 
to  a  very  large  amount,  and  he  re-purchased  the  estate  "  Tusculum  " 
which  had  been  sold  under  the  will  of  his  father  to  John  Lowber, 
which  estate  he  improved  at  a  considerable  expense,  for  his  own  resi- 
dence. The  deeds  for  all  the  property  were  taken  to  himself  without 
any  mention  of  the  trust. 

J,  ]\I.  Broom  becoming  embarrassed  in  his  circumstances,  and 
there  being  sundry  judgments  against  him  at  the  suit  of  defts.,  on 
the  31st  May,  182G,  executed  a  deed  of  assignment  of  all  his  prop- 
erty in  Delaware,  Maryland,  Ohio  or  elsewhere,  (except  in  Penn- 
sylvania) to  John  Lowber,  in  trust  to  pay  otf  the  said  legatees  of 
Jacob  Broom,  the  several  sums  to  which  they  were  entitled  under  the 
will  afs'd.,  they  executing  a  release.  This  deed  recited  that  certain 
sums  of  money  came  to  the  hands  of  the  said  J.  M.  Broom,  as  fcx- 
ecutor  and  trustee  under  the  will  afs'd.  of  Jacob  Broom  "  which  have 
not  been  paid  over  to  the  persons  entitled  to  the  same,  or  invested 
in  any  separate  and  distinct  investment  by  him  as  trustee;  but  the 
said  J.  M.  Broom  with  the  said  moneys  hath  purchased  sundry  par- 
cels of  real  estate,  intending  that  the  same  should  be  holden  for  the 
use  and  security  of  the  persons  so  entitled  to  the  said  moneys."  It 
further  recited,  that,  from  the  depreciation  of  real  estate  "  and  the 
loss  of  rents  and  inadequacy  of  the  same,  to  meet  the  payment  of  in- 
terest received  by  the  said  devisees,  and  made  by  the  said  J.  M. 
Brooju  since  the  year  18 JO,"  and  from  other  causes,  he  is  unable  to 
satisfy  the  demands  of  said  legatees,  but  being  desirous  of  doing 
them  all  the  iuslicc  in  his  power,  by  appropriating  these  estates 
"  which  were  intended  for  their  use  and  benefit,  to  the  satisfaction 
of  their  claims "  he  therefore  made  the  said  assignment.  This  as- 
signment was  acknowledged  before  the  Mayor  of  Philadelphia,  on 
the  day  of  its  date.  (31st  May,  1826,)  and  recorded  in  Xewcastle, 
Sept.  9,  1826. 

The  dates  of  the  several  judgments  claimed  by  defts.  are  as  fol- 
lows: Bank  of  Delaware,  judgment  entered  31st  Oct.  1818,  princi- 
pal, interest  and  cost  $1,824  58.  Jeffries'  ex'rs.  judgment  entered 
18th  Oct.  1825;  bal.  of  prin.,  int.  and  costs  $1,196  94.  Monro's 
adm'r.  judgment  entered  1st  March,  1821;  bal.  of  prin.,  int.  and 
costs  $929  22.  Bank  of  W.  &  Brandywine,  two  judgments,  3rd  June, 
1826,  and  15th  Dec.  1827,  for  $769  72. 

Under  these  circumstances  the  complainants',  legatees  under  the 
will  of  Jacob  Broom,  filed  their  bill  for  the  purpose  of  securing  these 
estates  so  purchased  as  they  contended  with  the  trust  funds  and  in  the 
execution  of  the  trusts,  which  gives  them  the  equitable  title  to  the 
lands,  not  to  be  effected  by  the  debts  or  incumbrances  of  the  trustee 
James  M.  Broom. 

The  Chancellor  decreed,  at  the  June  Term,  1831,  against  the 
complainants,  and  directed  payment,  out  of  the  proceeds  of  the  sales 
of  James  M.  Broom's  real  estate,  (which  had  been  brought  into 
court)  of  the  afs'd.  judgments  of  defts.  respectively  against  J.  M. 
Broopi. 


Egberts  et  al.  vs.  Broom  et  al.  59 

Whereupon,  an  appeal  was  prayed  and  granted. 

~Mr.  Bayard,  for  eomplt's.  applt's. 

The  lien  of  cestui  que  trust  is  good  against  the  trustee  and  per- 
sons claiming  under  him ;  and  against  all  persons  except  purchasers, 
and  quasi  purchasers  for  valuable  consideration  without  notice.  As 
it  relates  to  the  trustee,  the  lien  of  cestui  qui  trust  is  apparent  wher- 
ever the  trust  fund  can  be  traced;  and  the  mode  of  tracing  it,  without 
express  evidence  on  the  deeds,  may  be  by  parol  evidence  or  the  decla- 
rations of  the  trustee,  particularly  his  declarations  in  writing.  A 
trust  fund  traced  into  other  property  attaches  the  lien  of  the  trust  on 
that  property,  even  at  law.  If  a  trustee  purchase  land  and  take  the 
deeds  in  his  own  name,  the  trust  is  still  good  if  it  can  be  traced.  In 
equity  the  land  is  the  land  of  cestui  qui  trust.  Parol  evidence  may 
be  admitted  to  establish  the  trust.  ^Villes  R.  4D2;  1  Salk.  161;  1 
T.  Rep.  619;  5  Vezey  169;  10  Johns.  63;  Sugd.  Vend.  451,  (427); 
3  Johns.  216;  Amhler  409;  1  Dallas  193;  2  Washington  441;  3 
Binney  302;  8  Vezey  150;  17  do.  49.  The  exceptions  are  a  mort- 
gagee, who-is  a  quasi  purchaser,  and  a  purchaser  for  valuable  con- 
sideration without  notice,  and  no  others.  The  rights  of  the  judg- 
ment creditor  are  suljject  to  this  equity.  It  is  not  a  specific  pledge 
of  this  land,  but  a  general  security  against  the  person,  property  and 
land.  The  judgment  binds  the  land  generally  and  not  specially; 
and  is  subject  to  the  equitable  lines  of  others.  It  may  be  objected 
that  this  is  a  secret  lien;  impolitic  and  improper,  but  would  it  not 
be  more  impolitic  to  unsettle  established  law,  to  break  into  a  great 
system  and  mar  its  features.  Xor  can  we  readily  perceive  the  ulti- 
mate effects  of  such  a  deviation  from  established  principles.  The 
moment  you  establish  that  a  judgment  creditor  is  on  the  same  foot- 
ing with  a  mortgagee,  it  runs  into  an  infinite  range  of  effects  which 
may  at  some  time  startle.  1  Paige  Rep.  125,  283;  1  P.  ^yms.  277-8; 
2  do.  491.  Explains  the  difference  between  a  judgment  credi- 
tor and  a  mortgagee.  But  even  in  the  case  of  a  purchaser  for  valu- 
able consideration  without  notice,  it  is  a  mere  defence,  and  not  a 
ground  of  suit;  and  a  defence  to  be  set  up  in  a  very  special  manner. 
The  deft,  to  establish  a  protective  equity  must  show  he  has  been 
imposed  on:  he  must  deny  notice  on  oath,  &c.  If  the  circumstances 
of  our  people  should  require  a  modification  of  this  rule,  it  would  be 
that  the  complainant  when  this  lien  is  set  up,  should  be  entitled  to 
make  defence,  stating  that  the  deft,  in  the  judgment  was  in  posses- 
sion of  the  land ;  that  he  loaned  the  money  on  the  credit  of  the  land, 
and  declare  on  oath  that  he  had  no  notice  of  the  lien. 

Jacob  Broom's  will  gives  nearly  all  his  property  in  trust  with  privi- 
lege to  the  trustee  to  invest.  The  will  is  matter  of  public  record 
whicli  the  public  are  bound  to  take  notice  of  if  it  affects  them.  J. 
M.  Broom  admits  that  he  bought  this  land  with  the  trust  money  for 
the  purpose  of  the  trust;  the  principle  of  the  cases  only  requires 
proof  of  this  fact  by  the  admission  of  the  trustee. 

Mr.  Latimer,  for  respondents. 

There  is  in  all  the  cases  cited,  a  redeeming  feature  distinguishing 
them  from  the  present;  the  investment  of  the  trust  money  is  fully 
proved.  We  contend,  ]st.  That  the  purchase  of  the  land  in  this 
case  with  the  trust  money  is  not  sufficiently  proved,  and  2d.  That 


60  EOBEHTS   ET   AL.   Vi".   BhOOAI   ET   AL. 

the  length  of  time  will  deprive  complainants  of  their  remedy,  for 
their  own  laches. 

Where  there  is  no  direction  to  lay  out  trust  money  in  a  particular 
way,  no  presumption  can  arise  in  its  favor  and  much  stronger  evi- 
dence of  the  investment  is  required.  There  is  no  direction  jn  the 
will  of  Jacob  Broom,  that  this  money  should  be  invested  in  land.  He 
directs  a  c6nversion  of  all  his  lands  into  money.  The  only  proof  we 
have  is  the  declaration  of  J.  M.  Broom  in  the  deed  to  Lowber,  and 
this  is  far  from  being  explicit.  Tt  is  made  sixteen  years  after  the 
testator's  death,  lie  had  uniformly  used  the  land  as  his  own;  occu- 
pied and  improved  Tusculum;  always  charges  himself  with  money, 
and  when  he  becomes  insolvent,  endeavours  to  secure  the  legatees  to 
the  injury  of  his  creditors.  The  property  claimed  exceeds  the 
amount  of  the  trust  money.  All  the  heirs  paid  off  but  two.  Broom 
made  purchases  to  the  amount  of  $39,000.     Complainants  have  been 

paid  about  $3,000,  leaving  a  small  balance  of  $ — ,  fop  which  the 

whole  of  this  property  is  said  to  be  held  in  trust.     It  is  impossible. 
The  miugling  of  money  destroys  the  trust. 

Second.  Complainants  are  barred  by  their  own  laches.  Secret 
liens  are  against  the  policy  of  law;  and  cestuis  que  trust  standing 
by  and  seeing  the  rights  of  others  prejudiced  by  their  secret  liens  be- 
come accessaries  to  the  fraud,  and  cannot  in  a  Court  of  Equity,  set 
up  their  lien.  He  cited  2  Fonb.  Eq.  119,  note  C;  4  Vezej/  108,  118; 
10  do.  511,  516;  Finch  Pr.  88;  Amh.  413;  2  S.  &  Rawle  521;  2  Atk. 
72;  10  Johns  65;  7  Wheat.  56-7;  2  Wash.  R.  441. 

Mr.  Wales,  for  respondents. 

The  extent  to  which  the  doctrine  is  contended  for  is  new  and  dan- 
gerous—  new  as  regards  the  English  law;  more  objectionable  here. 
It  is  not  pretended  that  these  judgments  were  taken  with  notice  of 
the  trust.  They  bind  all  the  lands  of  J.  M.  Broom.  They  are  en- 
titled to  sell  all  the  estate  of  J.  M.  Broom  in  the  land,  and  however  the 
question  might  be  as  between  purchasers,  and  those  claiming  to  have 
the  equitable  title,  the  bill  is  misconceived  as  against  judgment 
creditors.  If  a  decree  was  had  against  the  purchasers,  they  would 
have  no  remedy  against  the  judgment  creditors,  to  recover  back  the 
purchase  money.  But  as  to  the  trust.  It  must  arise  from  the  will 
of  Jacob  Broom ;  or  from  the  declaration  of  truM ;  or  by  operation  of 
law.  The  will  does  not  direct  such  an  investment ;  the  fair  inference 
is  the  contrary.  The  recital  in  the  deed  to  Lowber  does  not  amount 
to  a  declarai.ion  of  trust;  and,  if  it  did,  it  is  contradicted  by  the  evi- 
dence. The  very  conveyance  in  that  deed  is  upon  terms  which 
shows  that  it  was  not  considered  trust  property.  But  the  acts  of  J. 
M.  Broom  in  relation  to  this  property,  and  his  charging  himself 
with  the  money,  payment  of  interest,  &c.,  are  conclusive.  Neither 
can  the  trust  arise  from  operation  of  law,  for  this  cannot  be  except 
where  the  identical  money  is  traced,  and  in  no  case  where  the  lien 
of  another  is  affected.  The  question  is  always  between  trustee  and 
cestui  que  trust.  Willes  402;  1  Salk.  161;  5  Vezey  169;  10  Johns. 
63. 

With  regard  to  the  policy  of  this  doctrine  here;  it  is  against  the 
whole  spirit  of  our  laws.  Credit  here  is  always  given  on  the  posses- 
sion of  land;  and  a  doctrine  giving  effect  to  secret  and  invisible 


Egberts  et  al.  vs.  Broom  et  al.  61 

liens,  would  spread  consternation  in  the  community.  Our  defeazance 
laws;  Stat,   frauds,  &c.,  make  careful  provision   against  them. 

Mr.  Read,  Jr.,  for  respondents. 

Denies  the  trust.  Every  confidence  is  not  a  trust.  An  executor 
is  not  a  trustee.  To  make  a  trust  both  the  object  must  be  declared 
and  the  instrument  named.  J.  M.  Broom  has  made  no  declaration 
of  his  trust.  He  purchased  land  very  extensively;  no  distinction 
m  his  purchases  —  and  who  can  say  what  land  was  bought  with  this 
money.  But  suppose  he  had  made  a  full  declaration  of  trust,  would 
:i  be  evidence  as  against  judgment  creditors.  Surely  not.  No  prin- 
(?iple  of  evidence  better  settled.  The  admission  is  evidence  as  be- 
tween the  trustee  and  cestui  que  trust,  but  not  as  against  third 
oersons. 

Complainants  are  barred  by  their  laches.  The  law  is  for  the  vigi- 
lant, and  not  for  the  sleeping;  and  their  claim  is  tainted  with  fraud. 
There  has  been  a  delay  of  sixteen  years. 

There  is  a  strict  resemblance  between  the  estate  Segely  in  the 
case  in  Washington's  Hep.  and  Tusculum  in  this  case.  Arnh.  6.33; 
10  Vezey  511;  3  Wash.  Kep.  441. 

Mr.  Rogers,  for  appellants  in  reply. 

To  Mr.  Wales'  first  point.  That  this  question  is  between  cestui 
que  trust  and  purchasers  of  the  land,  and  not  between  them  and^ 
judgment  creditors.  This  bill  was  filed  against  the  judgment  credi- 
tors before  the  sale,  which  was  made  under  the  order  of  court,  and 
ihe  proceeds  are  in  court. 

Second.  I  assume  it  as  a  principle  admitted,  that  trust  lands  are 
not  subject  to  the  debts  of  the  trustee;  and  that  trust  money  in- 
A'estcd  in  land,  gives  the  equitable  title  to  cestui  que  trust,  not  to  be 
affected  by  the  debts  of  the  trustee.  I  concede  that  as  it  regards  the 
tracing  of  the  money,  it  lies  on  us  to  prove  the  investment.  But  as 
to  the  evidence,  the  cases  cited  furnish  no  general  rule. 

It  appears  from  the  declaration  of  J.  M.  Broom,  that  this  land  was 
])urchased  with  trust  money.  Can  there  be  any  doubt  that  this  evi- 
dence is  good  between  him  and  the  complainants;  and  does  it  make 
jiny  difference  as  it  regards  third  persons.  Is  it  evidence  against 
judgment  creditors?  All  their  demands  on  this  fund  are  deduced 
through  J.  M.  Broom,  and  is  not  evidence  against  him  equally  evi- 
cience  against  all  persons  who  derive  their  interest  through  him? 

Cur.  adv.  vult. 

June  Term,  1833. 

Harrington,  J.,  delivered  the  opinion  of  the  court. 

After  stating  the  case  ut  ante. 

"It  has  been  long  established  in  England,  that  upon  sufficient  nroof 
of  trust  money  having  been  laid  out  in  the  purchase  of  land,  a  trust 
would  result  to  those  entitled  to  the  money;  and  tho  later  cases  es- 
tablish that  the  fact  of  such  purchase  may  be  proved  by  parol  evi- 
dence. Sugd.  455.  Much  greater  strictness  was  formerly  required 
i  a  the  proof  of  the  application  of  the  trust  money  to  the  specific  pur- 
chase. It  is  still  held,  that  when  the  conveyance  is  taken  in  the 
rame  of  the  trustee  without  the  trust  appearing  on  the  face  of  the 
deeds,  the  estate  will  not  be  liable  to  the  trust  unless  the  application 
of  the  purchase  money  can  be  clearly  proved.     Sugd.  427. 


62  KOBERTS   ET  AL.   VS.   BROOJi£   ET   AL. 

Upon  a  review  of  the  cases,  it  will  appear  that  the  doubt  has  been 
rather  upon  the  proof  than  as  to  the  application  of  principles  of 
equity.  In  come  cases  the  court  has  resorted  to  implications  in  sup- 
port of  the  lien  arising  from  the  inability  of  the  trustee  to  purchase 
with  his  own  funds,  and  from  his  being  under  an  obligation  to  make 
such  an  investment  of  the  trust  money.  On  the  other  hand  it  has 
been  held,  that  where  the  trustee  w^as  not  under  an  obligation  to 
make  the  specific  investment,  or  where  he  considered  himself  entitled 
10  the  trust  money,  no  presumption  could  be  raised,  in  opposition  to 
this  fact,  that  he  intended  any  lands  he  may  have  bought  with  the 
trust- money,  to  be  subject  to  the  trust. 

In  Perry  vs.  Philips,  4  Vezey  117,  the  Lord  Chancellor  (Lough- 
borough,) says  '  I  can  find  no  case,  no  authority  or  principle,  that 
enables  me  where  there  is  not  a  ground  of  presumption,  where  in. 
point  of  fact  I  must  be  satisfied  the  party  did  not  mean  to  execute 
the  trust,  or  conceive  himself  to  be  under  a  trust,  to  hold  that  the  es- 
tate he  purchased  is  subject  to  the  trust.' 

And  Fonblanque  (Fonh.  Eq.  120,)  in  remarking  on  this  opinion 
says  '  That  from  this  observation  of  Lord  Loughborough,  it  may  be 
collected  that  in  his  lordship's  opinion,  it  is  not  only  necessary  that 
the  trustee  be  under  an  obligation  to  purchase  land,  but  that  he  be 
apprised  of  such  obligation,  and  tliat  nothing  appears  to  rebut  the 
presumption  of  his  intention  to  discharge  it.' 

In  investigating  the  fact  of  the  purchase  of  these  lands  by  James 
M.  Broom  the  trustee,  with  the  trust  money,  and  for  the  purposes 
of  the  trust,  the  first  remark  upon  the  evidence,  suggested  by  the 
principle  of  the  cases  referred  to,  is,  that  he  was  under  no  obligation 
to  invest  this  trust  money  in  the  purchase  of  land;  and  that  he  was 
perfectly  competent  from  other  sources,  to  l)uy  these  lands  for  his 
own  use.  The  will  of  Jacol)  Broom  so  far  from  directing  the  pro- 
ceeds of  liis  property  to  be  invested  in  real  estate,  orders  all  his  real 
estate  to  be  converted  into  money,  to  create  a  fund  to  be  applied  and 
distributed  according  to  the  directions  of  his  will :  and  that  part  of 
this  fund  bequeathed  to  complainants,  is  directed  to  be  paid  '  to  trus- 
tees to  hold '  for  the  use  of  complainants  in  specified  proportions  '  the 
proceeds  thereof  to  be  paid  to  them '  as  directed  by  the  said  will. 
And  that  it  was  so  held  by  James  M.  Broom,  without  reference  to 
and  specific  investment  in  real  estate,  appears  from  his  administra- 
tion and  trustee  accounts  charging  himself  with  the  money ;  and  from 
the  payment  of  interest  to  the  legatees  which  he  alledges  in  the  deed 
of  assignment  to  Lowber,  to  have  been  a  principal  cause  of  his  embar- 
rassment. There  is,  therefore,  from  these  facts,  no  ground  of  pre- 
sumption that  Broom  conceived  himself  to  be  under  an  obligation 
in  the  execution  of  his  trust,  to  invest  this  money  in  land,  nor  that 
in  the  purchase  of  this  property,  his  object  and  intention  were  to  dis- 
charge such  obligation.  And,  connected  with  the  fact  of  the  con- 
veyance being  taken  in  his  name  without  any  mention  of  the  trust, 
it  is  a  case  where  the  complainants  will  be  held  to  strict  proof  of 
the  application  of  the  purchase  money. 

What  is  the  proof  relied  on?  It  consists  in  the  declaration  of  trust 
made  by  J.  M.  Broom,  in  the  deed  of  assignment  to  Lowber.  Jacob 
Broom  the  testator,  died  in  1810.       From  that  time  until  the  date 


KOBERTS    ET    AL.    VS.    BrOOM    ET    AL.  63 

(tf  this  assignment  in  1826,  James  M.  Broom  purchased  and  held  a 
large  real  estate  in  Pennsylvania,  Dela\Yare,  Maryland  and  Ohio, 
Jar  exceeding  the  amount  of  money  due  from  him  to  the  com- 
])lainants.  The  conveyances  were  all  made  to  him  personally  with- 
(lut  any  mention  of  a  trust;  and  he  occupied,  improved,  sold,  mort- 
gaged and  otherwise  charged  them  with  his  own  responsibilities  as 
his  own  property.  He  held  himself  out  to  the  world  as  the  proprietor; 
ind  upon  the  general  security  of  these  lands  he  obtained  credit.  At 
1he  same  time  he  treated  his  liability  to  complainants  as  a  debt  due 
from  him  to  them  personally,  not  charged  upon, or  invested  in  any 
])articular  portion  of  his  estate.  In  his  trustee  account  he  charged 
himself  with  money;  he  received  the  rents  and  profits  of  the  lands 
i.s  his  own,  and,  though  these,  were  inadequate,  as  he  alleges,  to 
keep  down  the  interest  of  the  sum  due  the  legatees  under  his  father's 
^v■ill,  he  still  considered  himself  liable  to  the  amount  of  that  in- 
terest. Under  these  circumstances,  being  embarrassed  by  this 
debt  and  by  judgments  and  mortgages  standing  against  him  at  the 
suit  of  respondents,  he  executed  a  deed  in  1826,  to  John  Lowber, 
(onveying  him  all  his  land  in  Delaware,  Maryland,  Ohio  or  else- 
^v'here,  except  in  Pennsylvania,  in  trust  to  pay  off  these  legacies 
to  such  of  the  legatees  as  should  execute  a  release.  The  recital  to 
this  deed  contains  the  declaration  of  trust  upon  which  it  is  designed 
to  establish  that  these  lands  were  bought  with  the  trust  money  in 
( xecution  of  the  trust,  and  that  the  equitable  title  thereto,  had  always 
1  eeii  in  the  cestuis  que  trnst  and  not  in  Broom.  This  deed  recites  that 
certain  sums  of  money  had  come  to  the  hands  of  J.  M.  Broom  as 
( xecutor  and  trustee  under  the  will  of  his  father  '  which  have  not 
ieen  paid  over  to  the  persons  entitled  to  the  same  or  invested  in  am, 
separate  and  distinct  investment  by  him  as  trustee;  but  that  the 
t-aid  J.  M.  Broom  with  the  said  moneys,  hat  purchased  sundry  par- 
cels of  real  estate,  intending  that  the  same  should  be  holden  for  the 
1  se  and  security  of  the  persons  so  entitled  to  the  said  moneys.'  This 
(ieclaration,  if  disconnected  from  the  facts  in  the  cause  could  not  be 
<  onsidered  as  very  unequivocal :  it  sets  out  with  the  distinct  avowal 
that  the  money  had  not  been  invested  in  any  separate  and  distinct  in- 
^  estment  by  him  as  trustee.  But  considered  in  connection  with  the 
evidence  it  amounts  to  nothing  more  than  this,  that  Mr.  Broom 
leing  indebted  to  certain  legatees,  holding  in  his  hands  a  fund  which 
he  was  directed  by  the  will  of  his  father  to  hold  and  to  pay  over  the 
]  roceeds  to  the  legatees,  made  frequent  purchases  of  lands  and  real 
estate  without  any  reference  to  his  trust,  but  which  he  regarded  with 
all  the  rest  of  his  property,  as  a  security  for  the  debt  due  to  these 
legatees.  The  idea  of  an  investment  of  their  money  in  real  estate 
for  their  use  so  as  to  give  them  a  title  to  the  land  is  totally  inconsist- 
ent with  all  his  conduct  in  relation  to  the  land  that  he  purchased  and 
held.  The  expensive  improvements  of  Tusculum  made  by  Mr. 
I'>room,  and  his  mortgage  of  the  Hazlitt  farm  to  Mrs.  Delaplaine, 
cmclusively  show  that  this  idea  of  their  being  trust  estates,  had  its 
origin  at  a  period  long  subsequent,  perhaps  at  the  time  when  in  the 
deed  of  assignment  to  Lowber,  he  declares,  that  having  become  em- 
barrassed by  the  payment  of  interest  to  these  legatees,  he  is  desirous 
0-  'appropriating'  these  estates  to  the  payment  of  their  claim. 


64  Roberts  et  al.  vs.  Bkoom  et  al. 

From  this  view  of  the  case  we  cannot  say  that  the  investment  oi 
this  trust  money  in  these  lands  has  been  proved  either  clearly  or 
satisfactorily  to  us  so  as  to  induce  us  to  recognize  an  equitable  lien  of 
these  legatees  upon  the  land  discharged  from  the  claims  of  the  judg- 
ment creditors:  and  we  design  to  rest  our  judgment  on  this  ground 
without  deciding  several  other  questions  of  importance  raised  in  this 
cause,  particularly  that  which  relates  to  the  application  of  this  gene- 
ral doctrine  of  the  equitable  lien  of  cestui  que  trust  as  established  in 
England  to  our  own  country.  In  Bailei/  vs.  Greenleaf  et  al.  (7 
Wheat.  57.)  Ch.  Jus.  Marshall,  says  '  In  the  United  States  the  claims 
of  creditors  stand  on  high  ground.  Tliere  is  not  perhaps  a  state 
in  the  union  the  laws  of  which  do  not  make  all  conveyances  not 
recorded  and  all  secret  trusts  void  as  to  creditors  as  well  as  subse- 
quent purchasers  without  notice.'  On  this  occasion,  however,  we 
waive  a  decision  of  the  general  question  which  is  unnecessary  as  the 
proof  does  not  satisfy  us  of  the  investment ;  and  we  arc  all  of  opinion 
that  the  decree  of  the  Court  of  Chancery  ought  to  be  afltirmed. 

(Xote.)  It  was  contended  in  the  argument  that  the  decree  was 
erroneous,  so  far  as  regarded  the  proceeds  of  sale  of  the  house  in 
Wilmington,  bought  by  Mr.  Wales,  because  it  was  sold  as  the  prop- 
erty of  Jacob  Broom,  and  was  never  the  property  of  J.  M.  Broom 
either  as  trustee  or  otherwise.  The  same  objection  was  made  in  re- 
lation to  two  tracts  sold  to  the  Morrissons,  one  for  $155:  and  the 
other  for  $425 :  and  also  a  pi(!ce  of  marsh  sold  to  J.  Wales  for  $200. 
It  was  also  contended  that  the  decree  could  not  embrace  the  whole 
proceeds  of  the  Bohemia  Manor  farm,  as  a  part  thereof,  about  forty 
acres,  is  in  ]\Iaryland,  and  not  bound  by  these  judgments.  The 
same  objection  was  made  to  the  decree  so  far  as  it  applies  the  pro- 
ceeds of  the  Logue  farm  to  these  judgments.  This  farm  lies  alto- 
gether in  Maryland,  and  sold  for  $305.  The  only  evidence  in  the 
cause  in  relation  to  the  lot  bought  by  J.  Morrison,  and  the  tract 
bought  by  T.  Morrison  is  furnished  by  the  complainant's  bill  which 
sets  forth  these  tracts  as  a  part  of  the  land  bought  by  James  M. 
Broom  with  the  trust  funds.  There  is  therefore  no  reason  for  ex- 
cepting these  particular  tracts  from  the  operation  of  the  decree. 
The  proceeds  of  the  sales  of  the  other  property,  exclusive  of  the 
house  in  Wilmington  sold  to  Mr.  Wales,  and  also  exclusive  of  the 
liOgue  farm  in  Maryland,  and  of  that  part  of  the  Bohemia  Manor 
farm  that  lies  in  Maryland,  are  amply  sufficient  to  cover  the  amount 
ordered  by  the  decree  to  be  paid  to  the  judgment  creditors,  and 
leave  a  large  sum  unappropriated.  Without  inquiring  then  whether 
the  creditors  are  entitled  to  the  proceeds  of  this  property,  there  being 
a  sufficient  fund  for  the  payment  of  their  claims  without  it,  the 
decree  must  stand. 

The  sales  of  the  property  were  as  follows : 

The  Clement's  creek  marsh  sold  to  Mr.  Wales  for  $200 

"    Stable  lot  to  J.  Morrisson  for  155 

"    Grave  yard  lot  to  Lowber  for  100 

''    Woodland  on  Kennet  road  to  J.  Martin  for  650 

**    Holland's  creek  marsh  to  J.  Morrison  for  425 

The  Oldham  farm  on  the  manor,  450a..  (40  a.  in  Mary- 
land,) sold  to  Smith  for  $1900;  deduct  $200  for  the 

40  a.  in  Maryland  1700 


Yates  &  M'Intyee  vs.  Paine,  Burgess,  et  al.  65 

Tusculum  sold  by  the  shff.  to  Doct.  Martin  for  $5700; 
and  the  Hazlitt  farm  sold  to  Higgins  for  $3035; — 
These  tracts  were  sold  on  Tatnall's  judgment,  and 
Delaplaine's  mortgage,  and  the  sheriff  paid  into 
Court  (after  deducting  these  claims,  as  I  suppose) 
this  balance  503(J 


8260 
House  in  Wilmington  sold  to  Wales,  which  complain- 
ants contend  is  not  bound  by  the  judgments  vs.  J. 
M.  Broom  3250 

Logue  farm,  in  Maryland,  sold  to  Wales  for  305 


Sums  ordered  to  be  paid  by  the  Decree: 

Bank  of  Delaware  $1824  58 

Executors  of  JeflEries  1196  94 

Administrators  of  Monro  929  22 

Bank  of  Wilmington  and  Brandy  wine  769  71 


$11,815 


4,720  45 
Surplus  of  sales  $7,094  55 


Or  $3,539  55,  exclusive  of  the  house  in  Wilmington;  the  Logue 
farm  and  part  of  the  Bohemia  Manor  farm. 

Decree  afi&rmed  with  costs. 

^7.  A.  Bayard  and  Rogers  for  appellants. 

Latimer,  Wales  and  Reed,  Jr.  for  judg't.  creditors. 


JOSEPH   VANNINI,    ARCHIBALD    M'INTYRE    &   JOHN   B. 
YATES  vs.  JOHN  PAINE,  and  DANIEL  BURGESS  et  al. 

Jurisdiction  of  State  Courts  in  Patent  Cases. 

Persons  undertaking  to  draw  a  lottery  must  comply  with  all  the  requirements 

of  the  grant. 
Bill  dismissed  because  complainants  failed  to  set  out  that  they  had  given 

bonds  as  required  by  the  act  authorizing  them  to  draw  a  lottery. 

Appeal  from  Chancery.     New-Castle  County. 

Joseph  Vannini  was  the  inventor  and  patentee  of  a  mode  of  draw- 
ing lotteries  and  making  schemes  for  lotteries  on  the  combination 
and  permutation  principle,  which  has  been  adopted  and  used  by 
Yates  and  M'Intyre,  by  authority  from  him.  Yates  &  M'Intyre 
having  purchased  some  lottery  privileges  in  the  State  of  Delaware, 
proceeded  to  drawing  in  a  series  of  classes.  Paine  &  Burgess  the 
respts.  also  lottery  brokers,  purchased  the  privilege  of  drawing  a 
lottery  under  the  act  for  the  benefit  of  the  Trappe  School,  and  issued 
their  scheme  upon  the  plan  of  Yates  &  M'Intyre  or  Vannini's  patent. 
Yates  &  M'Intyre  applied  for  an  Injunction,  which  was  ordered  by 
Chr.  Ridgely;  afterwards  the  case  came  up  before  Johns,  Jr.  Chr., 
and  the  bill  was  dismissed.     From  this  decree  the  appeal  was  taken. 

9 


66  Yates  &  M'Intyre  vs.  Paine,  Burgess,  et  al. 

Rogers  for  appl'ts. 

The  principal  questions  in  the  discussion  before  Chr.  Ridgely 
were  —  Ist,  That  the  State  court  had  no  jurisdiction,  it  being  a  ques- 
tion on  a  patent  and  cognizable  in  the  Circuit  Court  only.  2d.  That 
the  tfcts  of  Assembly  authorizing  the  drawing  of  these  lotteries  did 
not  afford  ground  for  relief;  and  3d.  That  Vannini's  patent  was  not 
original:  that  the  same  plan  was  to  be  found  in  Dobson's  Encyclo- 
paedia, tit.  Lottery. 

As  to  Jurisdiction.  The  original  act  of  Congress,  1793,  February, 
gives  jurisdiction  to  the  Circuit  Court,  and  "  any  other  courts  "  &c. 
In  the  act  of  15  Feb.  1819,  the  words  "  any  other  courts  "  &c.,  are 
•omitted  —  whence  it  was  contended  that  the  Circuit  Court  had  exclu- 
sive jurisdiction.  We  contest  this  principle;  and  again,  we  say  that 
if  the  jurisdiction  is  exclusive  as  to  the  mere  question  of  patent,  we 
have  a  distinct  ground  of  action  arising  under  our  laws  and  the  ques- 
tion of  patent  right  coming  incidentally  up,  will  not  deprive  us 
of  relief  in  the  State  Court.  We  admit  that  the  Circuit  Court  has 
jurisdiction;  but  we  say  that  it  is  not  exclusive.  Congress  may  ex- 
clude the  State  Courts,  but  they  have  not  done  it.  An  express  ex- 
•clusion  of  the  State  Courts  is  necessary  or  they  retain  their  jurisdic- 
tion. The  Circuit  Court  has  no  jurisdiction  where  the  parties  are 
citizens  of  the  same  State.  In  such  case  there  is  no  remedy  if  the 
State  Courts  are  excluded.  If  neither  party  reside  in  the  State 
where  suit  is  brought  the  Cpurt  has  no  jurisdiction.  Congress  has 
the  exclusive  power  of  granting  patents.  Marshalls  bond  may  be 
sued  in  the  State  Courts  and  also  in  the  Circuit  Court.  In  certain 
cases  suit  must  be  brought  in  the  State  Courts.  In  relation  to  the 
validity  of  the  patent:  the  specification.  A  mere  method  or  prin- 
ciple may  be  patented. 

He  cited  Fessenden,  402;  5  WheMt.  25-6-7;  5  Cranch,  85;  Cox 
Dig.  433 ;  Const.  Art.  3,  sec.  2 ;  5  vol.  L.  U.  S.  268 ;  Serg.  C.  Law, 
109;  1  Mason  520;  9  Johns.  581;  12  Wheat.  129;  5  Cranch  51;  3 
Wheat,  appx.  20;  Bui.  N.  P.  77;  2  H.  Blac,  463. 

Latimer,  for  respondents. 

The  application  is  to  restrain  defts.  from  using  an  invention  claim- 
ed by  Vannini,  of  which  Yates  &  M'Intyre  have  bought  the  right 
for  this  State.  Yates  &  M'lntyre  bought  the  lottery  privileges  gran- 
ted by  three  acts  of  Assembly  in  favor  of  Immanuel  Church,  6  Del. 
L.  74.  Middletown  Academy,  6  Del.  L.  537,  and  the  Newark  Aca- 
demy 5  Del.  L.  378,  6  Id.  555.  Defts.  bought  the  grant  in  favor 
of  the  Trappe  School.  4  Del.  L.  35.  This  purchase  is  said  to  be 
illegal.  It  is  denied  that  the  trustees  of  the  Trappe  School  could 
assign  the  grant.  The  application  therefore  is  to  restrain  defts.  from 
drawing  an  unauthorized  lottery  which  is  an  illegal  act.  Digest  138. 
The  Court  will  not  restrain  a  man  from  doing  an  illegal  act,  for  it 
■will  not  presume  that  he  will  violate  the  law.  Peters'  Rep.  Chero- 
kee Nation  vs.  Georgia,  Feb.  Term,  1831,  of  the  Sup.  Court.  (See 
Mr.  Jus.  Johnson's  opinion.)  For  such  an  act  the  defts.  would  be 
liable  to  a  criminal  prosecution. 

This  is  not  a  subject  for  a  patent  and  the  specification  does  not  sus- 
tain it.  It  is  a  patent  for  an  improvement  —  for  a  mere  method.  A 
patent  cannot  be  for  a  principle,  though  it  may  be  for  the  applica- 


Yates  &  M'Intyre  vs.  Paine,  Burgess  et  al.  67 

lion  of  a  principle  to  machinery.  2  H.  Black.  482,  485,  495;  1 
Peters  C.  R.  341-2;  2  C.  L.  E.  424;  3  Waslig.  R.  196.  Vannini's 
]mprovement  is  not  connected  with  any  construction  of  matter  or 
application  to  machinery.  It  is  a  mere  abstraction.  The  invention 
s  not  new.  It  is  simply  the  common  arithmetical  rules  of  combi- 
nation and  permutation.  The  invention  must  be  useful  —  not  mis- 
ohievous  or  immoral.  Lotteries  are  declared  immoral.  The  patent 
is  for  an  invention  and  the  specification  is  of  an  improvement.  This 
makes  it  void.  4  Washg.  12;  1  Del.  L.  ;  3  Wheat.  476;  Fess.  145, 
149 ;  2  C.  L.  R.  354. 

Second.   The  State  Courts  have  no  jurisdiction  of  questions  under 
;he  patent  laws.     Complainants  seek  relief  chiefly  on  the  ground  of 
1  violation  of  their  jmtent  right.     1  Kent.  Com.  306;  9  Johns.  R. 
575,  7  Id.  144;  4  Washg.  109;  1  Kent  C.  383. 
Rogers,  for  appellant  in  reply. 

A  distinct  ground  of  our  going  into  Chancery  was  the  violation  of 
our  rights  under  our  contracts  made  by  authority  of  the  laws  of  this 
State.  Complainants  have  purchased  under  three  acts  of  Assembly. 
They  agreed  to  give  the  Newark  Academy  $50,000;  the  Middle- 
town  Academy  $9,000;  and  Immanuel  Church  $15,000,  for  the  pri- 
vilege of  drawing  under  their  grants.  The  defts.  come  in  to  draw 
a  lottery  unauthorized  by  the  law,  and  the  effect  is  to  deprive  com- 
plainants of  the  benefit  'of  their  contract.  Have  we  not  a  right  to 
enjoin  them?  The  Cherokee  case  has  been  cited.  The  distinction  is 
this :  we  have  a  vested  interest  —  an  acquired  right,  which  is  to  be 
violated.  We  ask  the  interference  of  the  court  in  reference  to  our 
interests  and  not  in  vindication  of  the  public  law.  Is  it  not  strange 
that  we  cannot  be  protected  against  a  civil  injury  because  it  involves 
a  crime.  Does  the  public  injury  merge  our  private  wrong;  or  the 
vindication  of  the  crime  redress  our  injury?  The  same  objection 
would  apply  in  the  Circuit  Court  of  the  IJ.  S.,  and  we  would  be 
remediless. 

The  illegality  of  deft's.  lottery  is  apparent.  The  law  (6  D.  L.  35,) 
grants  to  the  trustees  of  the  Trappe  School  power  to  draw  a  lottery  to 
raise  $600.  The  gi-ant  to  them  is  personal  and  is  confined  to  them  or 
a  majorit}'^  of  them.  They  are  required  to  give  bond,  &c.  Yet  no 
bond  has  been  given  —  the  trust  has  been  assigned  without  authority, 
and  under  this  void  authority  defts.  have  undertaken  to  draw,  in 
classes,  $30,000. 

As  to  the  jurisdiction:  the  omission  in  the  act  of  1800,  of  the 
words  in  the  act  of  1793,  does  not  exclude  the  State  Courts,  and  unless 
Congress  expressly  excludes  the  State  Courts,  the  jurisdiction  remains. 
5  Cranch.  R.  84.  Curia  advisare  vult. 

June  Term,  1833. 

Judge  Robinson  delivered  the  following  opinion  of  the  Court: 
"  This  cause  came  before  the  Court  by  an  appeal  from  the  decree 
of  the  Chancellor,  made  on  the  24th  of  February,  1832,  in  the 
Court  of  Chancery,  held  at  Newcastle,  by  which  the  Bill  filed  in 
that  Court  was  dismissed  and  the  Injunction,  which  had  been  issued 
to  restrain  Paine  &  Burgess  from  the  infringement  of  a  patent  right, 
was  dissolved.  The  Bill  states  that  Vannini  is  the  original  inventor 
of  a  plan  for  constructing  and  drawing  lotteries,  and  that  he  had 


68  Yates  &  M'Intyre  vs.  Faine,  Burgess  et  al. 

obtained  a  patent  therefor.    That  a  contract  was  made  between  the 
plffs.,  by  which  Yates  &  M'Intyre  acquired  the  exclusive  right  of 
constructing  and  drawing  lotteries  within  the  State  of  Delaware,  ac- 
cording to  said  invention,  in  which  Vannini  has  an  interest.     That 
Yates  &  M'Intyre  in  1825,  entered  into  contracts  with  the  managers 
of  the  Newark  College  lottery,  and  with  the  Wardens  and  Vestry  of 
Immanuel  Church  lottery,  and  with  the  trustees  of  the  Academy  of 
Middletown,  by  which  they  agreed  to  pay  to  each  of  those  institu- 
tions the  sums  they  were  respectively  authorized  by  the  Legislature 
of  this  State  to  raise  by  way  of  Lottery.     That  they  gave  bonds 
with  sufficient  and  approved  security  for,  the  due   performance  of 
their  afsd.  contracts,  and  had  in  progress  lotteries  founded  on  ^aid. 
patent  and  in  part  on  the  afsd.  acts  of  assembly.     Paine  &  Burgess 
are  charged  with  having  issued  notices  and  schemes  for  drawing  lot- 
teries in  this  State,  and  with  having  adopted  and  designing  to  use  the 
plan  invented  by  Vannini  in  violation  of  his  patent,  and  pretending  to 
derive  the  power  under  an  act  of  the  General  Assembly  of  this  State 
to  enable  the  trustees  of  the  Trappe  School  to  raise  a  sum  of  money 
by  a  lottery.     But  it  is  alledged  that  this  act  of  assembly  had  not 
been  complied  with  by  the  Trustees,  by  giving  the  bond  to  the  trea- 
surer of  the  State  of  Delaware,  which  the  act  required  to  be  given,, 
previous  to  their   entering  upon  their   duties;   wherefore   the   said 
Paine  &  Burgess  did  not  obtain  any  authority  to  draw  said  lottery.. 
And  it  is  charged  that  if  Paine  &  Burgess  are  permitted  to  draw  said 
lottery,  they,  Yates  &  M'Intyre,  will  sustain  loss  and  injury  irre- 
parable.   Paine  &  Burgess  admit  the  most  important  facts  set  forth 
in  the  bill  but  deny  that  Vannini  is  the  original  inventor  of  the 
plan  for  which  he  obtained  his  patent;  and  that  his  description  of 
the  invention  is  such  as  the  act  of  Congress  required ;  and  {hey  insist 
that  the  patent  is  null  and  void :  and  that  the  matters  and  things  set 
forth  in  the  bill  exclusively  belong  to  the  Courts  of  the  United  States. 
The  case  was  ably  debated  on  both  sides  at  the  last  term  as  to  the 
jurisdiction  of  the  State  Courts,  in  causes  arising  under  the  patent 
laws  of  the  United  States;  and  as  to  the  validity  of  the  patent  right 
to  Vinnini ;  but  the  court  deem  it  unnecessary  to  express  any  opinion 
on  these  questions.     At  the  time  Yates  &  M'Intyre  made  contracts 
for  the  lottery  privileges  set  forth  in  their  bill  we  had  in  force  an  act 
of  assembly  prohibiting  lotteries,  the  preamble   of  which  declares- 
that  they  are  pernicious  and  destructive  to  frugality  and  industry  and 
introductive  of  idleness  and  immorality,  and  against  the  common 
good  and  general  welfare.    It  therefore  cannot  be  admitted  that  the 
plffs.  have  a  right  to  use  an  invention  for  drawing  lotteries  in  this 
State,  merely  because  they  have  a  patent  for  it  under  the  United 
States.     A  person  might  with  as  much  propriety  claim  a  right  to 
commit  murder  with  an  instrument  because  he  held  a  patent  for  it  as 
a  new  and  useful  invention.    But  the  plffs.  say  they  have  in  progress 
lotteries  founded  on  their  patent,  and  in  part  on  three  acts  of  the 
General  Assembly.     One  of  these  declares  that  the  managers  or  a 
majority  of  them  before  entering  upon  the  duties  required  shall  give 
bonds  for  the  faithful  discharge  of  the  trust  reposed  in  them;  and 
further,  that  those  only  shall  be  managers  who  shall  give  bonds. 
One  of  i?aid  acts  required  that  the  managers  before  they  proceeded 


BuDD  ET  AL.  VS.  BusTi  &  Vandekemp,  69 

to  draw  the  lottery  should  certify  to  the  Governor  the  time  and  place 
of  drawing,  and  that  previously  to  selling  any  tickets  they  should 
give  bond  for  the  due  and  faithful  performance  of  their  duty  in  the 
sales  of  the  tickets,  drawing  the  lottery,,  paying  the  prizes,  and 
managing  all  the  business  of  said  lottery;  and  of  this  lottery  Yates 
&  M'lntyre  state  that  they  were  appointed  the  managers.  And  the 
other  act  required  that  the  managers,  before  entering  upon  the  duties 
required,  should  give  bond  for  the  faithful  discharge  of  the  trust  re- 
posed in  them.  The  plffs.  in  their  bill  state  that  they,  Yates  & 
M'Intire,  entered  into  certain  contracts  with  the  Managers,  Vestry 
and  Wardens  and  Trustees  before  mentioned,  by  which  they  engaged 
to  pay  certain  sums  of  money  authorized  by  the  legislature  of  the 
State,  to  be  raised  for  them  by  way  of  lottery,  and  that  they  gave 
bonds  for  the  due  performance  of  their  said  contracts;  but  not  one 
word  is  said  in  the  bill  of  any  bonds  having  been  given  to  secure 
the  payment  of  prizes,  or  refunding  sums  paid  for  tickets  in  case  the 
lotteries  should  not  be  drawn,  and  which  bonds  by  the  said  acts  of 
assembly  were  required  to  be  given  before  the  said  lotteries  could  be 
drawn  or  tickets  could  be  sold  under  them'.  The  plffs.  therefore  ha- 
ving failed  to  shew  any  interest  or  right  in  them  to  draw  these  lot- 
teries they  were  not  entitled  to  relief,  and  the  decree  of  the  Chan- 
cellor must  be  affirmed  with  costs.  Taking  all  the  facts  stated  in 
the  bill  to  be  true,  the  plffs.  by  not  shewing  a  compliance  with  the 
conditions  imposed  by  the  acts  of  assembly  granting  these  lottery 
privileges,  on  which  the  power  to  draw  the  lotteries  was  to  be  exer- 
cised, appear  more  justly  deserving  punishment  by  way  of  a  crimi- 
nal prosecution,  than  protection  from  the  extraordinary  powers  of  a 
Court  of  Equit}''. 

Decree  of  Chancery  affirmed  with  costs. 


WESLEY  BUDD  and  others  vs.  PAUL  BUSTI  &  JOHN  J.  VAN- 
DEKEMP. 

How  far  a  vendor  has  a  lien  on  the  land  for  his  purchase  money,  and  against 

whom. 
Is  the  English  law  on  this  subject  to  be  recognized  here?     Quere. 

Appeal  from  the  Court  of  Chancerj^  Newcastle  County. 

The  court  consisted  of  Johns,  Jr.  Chancellor,  (the  appeal  being 
from  the  decree  of  the  late  Chancellor)  Clayton,  Chief  Justice, 
Harrington,  Associate.    Judges  Black  and  Robinson  did  not  sit. 

Frame,  for  applts.  defts.  below:  Arthur  Milby  owned  a  tract  of 
land  in  Sussex  County  and  sold  it  in  1817,  to  Budd  &  Tuft;  one- 
third  to  Budd  and  two-thirds  to  Tuft,  for  $26,000.  Tuft  conveyed 
his  part  to  Budd  soon  after  the  deed  from  Milby.    Shortly  after  this 

Budd  executed  a  deed  of  bargain  and  sale  of  the  premises  to 

Jones.  This  deed  is  alledged  to  be  fraudulent;  but  the  fraud  is  de- 
nied in  Milby's  answer.  After  this  Budd  conveyed  the  same  lands 
to  complainants,  Busti  &  Vandekemp,  in  trust  for  the  Holland  Land 
Company,  to  pay  a  prior  debt  —  or  mortgage  it  as  the  defts.  contend. 
A  large  part  of  the  consideration  money  on  the  original  sale  of  Mil- 
by to  Budd  &  Tuft  ($7835  47)  still  remains  due  and  unpaid  to  Mil- 


70  BUDD  ET  AL.    VS.  BUSTI  &  VaNDEKEMP. 

by.  Milby  has  always  continued  in  possession  of  the  land,  and  after 
the  sale  from  Budd  to  Busti  &  Vandekemp,  he  bought  in  the  title  of 
Jones  with  a  knowledge  of  the  fact  that  there  was  a  deed  (informal, 
not  being  acknowledged)  from  Budd  to  Busti  &  Vandekemp,  but 
without  any  knowledge  of  the  consideration  of  that  deed. 

The  question  is  whether  Milby  has  a  lien  for  his  consideration 
money,  and  whether  the  Chancellor  erred  in  deciding  against  this  lien. 

The  rule  of  Equity  is  that  the  vendor  of  lands  has  a  lien  for  his 
purchase  money  or  any  balance  thereof  as  against  the  vendee  or  his 
heirs  and  against  purchasers  from  the  vendee  with  notice.     And  I 
am  free  to  admit  that  the  purchaser  bona  fide  without  notice  does 
not  take  land  subject  to  this  equitable  lien.    2  Mad.  Ch.  129,  Sugd. 
386,  c/t.   12,   733,  ch.  13,  s.  5,  10;  4  Brown,  420;  3  Eq.  Ca.  Ab. 
682,  n.;  2   Vez.  sen.   622;  3  Bos.  &  Pull.  183;  15   Vez.  jr.  329, 
37,  &c.     I  apply  the  cases — 1st.  as  if  Busti  &  Vandekemp  had  no 
notice  —  and  here  I  take  this  distinction,  which  is  well  settled,  that 
this  principle  that  the  party  is  a  bona  fide  purchaser  without  notice 
is  strictly  a  defence  to  be  set  up  in  resistance  of  a  claims  against  him, 
but  not  a  ground  for  relief  against  another.    It  is  a  shield  and  not  a 
sword' — a  safeguard  against  attack,  but  not  a  means  of  assailing  others. 
Mitfd.  PI.  215;   1   Mad.  ch.  207;   2    do.  322-3-4;    16  Vez.    252;    1 
AtTc.  603;    1  Vern.  246;   4  Russcl  515;   2  Simon   &    Stewart   472. 
If  this  distinction  exists,  it  settles  the  case.     Busti  &  Vandekemp 
are  the  complainants  below —  asking  relief  against  Milby.     This  de- 
fence can  only  be  taken  by  plea — and  a  plea  most  specially  guarded. 
It  must  aver  entire  want  of  notice,  positively  and  not  evasively  — 
must  aver  the  want  of  notice,  up   to   the   execution  of  the   deed 
and  payment  of  the  purchase  money — it  must  always  aver  that  the 
vendor  was  in  possession  of  the  land,  or  it  will  not  avail:  And  the 
plea  must  be  verified  by  oath.     All  this  shews  that  it  is  a  defence 
very  specially  restricted:  to  be  used  only  in  a  particular  form.    The 
want  of  notice  is  a  negative  and  cant  be  proved :  it  must  therefore 
be  sworn  to.    Suppose  it  set  forth  in  a  bill  for  relief :  it  makes  a  case 
without  evidence.    On  general  principles  this  is  merely  a  defence :  it  is 
a  countervailing  Equity  to  prevent  the  operation  of  another  Equity. 
It  may  prevent  the  court  from  enforcing  an  Equity,  but  it  cannot 
procure  the  action  of  the  court  to  destroy  that  equity.     To  entitle  to 
relief,  complainants  equity  must  be  stronger  than  the  respondents. 
The  principle  is  not  uncommon  in  Equity  where   the    condition    of 
the  party  as  complainant  or  deft,  will  affect  his  right  to  relief:  a  man 
may  have  a  good  defence  which  is  not  the  ground  of  suit.     Though 
a  purchaser  for  valuable  consideration  without  notice  shall  not  be 
prejudiced  he  shall  not  be  assisted.     2  Fonb.   147  n.;  1   do.  321, 
50;  9  Vez.  33;   3   Atlc.    517;   2    Merivale   427;   2    Fonb.    147,   n.; 
Sugd.  557;  Ambler  292;  3  Vez.  jr.  225;  18  Johns   E.  544,  d-c.  564- 
5-6-7-9.     There  is  nothing  in  the  case  that  can  affect  this  question. 
It  exists  independently  of  anv  other  ground  of  action.     Complain- 
ants may  be  in  court  properly,  on  the  ground  of  fraud  in  Jones' 
deed,  and  may  be  entitled  to  a  decree  for  the  land ;  b\it  they  cannot 
get  it  discharged  of  this  equitable  lien.     The  relief  soii{rht  against 
this  Equitv  is  entirely  distinct  from  the  relief  against  Jones'  deed, 
as  where  the  bill  is  to  redeem  a  mortgage,  the  court  will  not  afford 
relief  if  the  mortgagor  owes  other  sums  to  the  mortgagee  but  upon 


BUDD  ET  AL.   VS.   BUSTI  &  VaXDEKEMP.  71 

payment  of  these.  In  relation  to  this  deed  of  Jones  the  court  will 
not  scrutinize  the  manner  of  obtaining  a  legal  advantage  to  protect 
an  undoubted  equity.  Courts  have  gone  a  great  way  in  recognizing 
such  titles.  Francis  Max.  72;  2  Vez.,  sen.  573;  2  Vern.  158-9. 
There  is  no  proof  here  to  taint  Milby  with  fraud  in  procuring  this 
deed. 

Second.  We  deny  that  Busti  and  Vandekemp  were  purchasers 
without  notice.  There  is  not  one  word  in  the  bill  denying  notice; 
nor  is  it  averred  that  Budd  was  in  possession.  It  is  distinctly  aver- 
red in  Milby's  answer,  that  he  was  never  out  of  possession  oi  these 
lands,  and  there  is  no  evidence  to  controvert  this.  This  is  construc- 
tive notice;  sufficient  to  put  the  buyer  upon  inquiry  into  the  title,, 
and  especially  in  this  country,  where  the  land  always  passes  with  the 
title.  What  is  sufficient  to  put  a  man  on  inquiry  is  good  notice ;  and 
there  is  no  difference  between  actual  and  constructive  notice.  No- 
tice that  the  title  deeds  are  in  another's  possession  is  notice  of  his 
lien;  much  more  is  the  possession  of  the  land  itself  notice  of  a  lien. 
Notice  of  possession  by  a  tenant  is  notice  of  the  lease.  Possession 
is  sufficient  to  put  the  party  on  inquiry,  and  what  is  sufficient  for 
this  purpose  is  notice.  Sugd.  532,  533,  542;  13  Vez.;  2  Vez.  jr. 
441;  1  Atk.  567;  9  Vez.  32;  3  do.  226. 

Our  positions  then  are  1st.  That  the  matter  of  want  of  notice  is 
only  a  defence.  2nd.  If  it  could  avail  them  as  complainants,  they 
must  present  all  the  requisites  of  which  possession  of  their  vendor  is 
one.  3rd.  That  actual,  or  what  is  the  same,  constructive  notice  is 
proved. 

Mr.  Bayard,  on  the  same  side,  cited  for  future  reference  Sugd, 
Vendors,  399;  Paige  R.  128;  Amh.  724;  7  Wheat.  46. 

Mr.  Rogers,  for  respdt's.  compts. 

Sugden  is  not  supported  by  the  cases  cited ;  neither  is  Paige.  Nor 
is  he  supported  by  Ambler,  nor  Brown.  7th  Wheaton  settles  that 
whole  matter  and  overrules  Sugden  and  his  authorities. 

Second.  I  submit  that  this  question  of  equitable  lien  is  now  started 
for  the  first  time  in  this  state,  and  that  it  is  now  within  the  province 
of  this  court  to  settle  to  what  extent  it  is  conformable  to  the  state  of 
things  here,  and  how  far  it  ought  to  be  adopted.  It  is  a  branch  of 
equity  law  to  be  adopted,  and  not  merely  recognized.  Is  it  consis- 
tent with  our  alienation  and  lien  laws  ?  Our  custom  is  to  sell  land  on 
credit,  and  take  bonds  or  mortgages.  It  is  not  settled  in  England 
what  kind  of  security  taken,  will  waive  the  equitable  lien;  and  it 
would  be  monstrous  to  say  that  the  securities  usually  taken  here 
still  left  the  land  subject  to  the  lien  in  the  hands  of  the  purchaser. 
The  whole  law  of  mortgages  is  different  here  from  that  in  England. 
The  laws  alienating  lands  for  debt  are  different ;  in  England  land  can 
only  be  affected  by  elegit  Adopting  the  principles  of  equitable  liens 
here  would  greatly  trammel  the  alienation  of  lands.  The  establish- 
ing the  doctrine  in  England  has  been  the  subject  of  regret:  and  I 
trust  the  courts  here  will  not  adopt  it.  Assuming  that  we  are  pur- 
chasers without  notice,  can  we  avail  ourselves  of  it.  The  case  has 
been  argued  as  if  we  were  using  this  principle  as  a  sword  and  not  as  a 
shield  How  are  the  facts  ?  Our  bill  goes  upon  no  such  ground.  We 
come  into  court  with  a  deed  from  Budd's  wife ;  with  the  legal  title ;  not 


73  BUDD  ET  AL.   VS.   BUSTI   &   VaNDEKEMP. 

as  a  mortgagee,  but  as  the  legal  owner  of  the  fee  simple,  seeking  relief 
against  a  fraudulent  deed  from  Budd  and  wife  to  Jones,  and  an  aliena- 
tion from  Jones  and  wife  to  Milby.  This  brought  us  into  Chancery. 
We  could  not  resist  this  deed  at  law,  fraudulent  as  it  is,  and  we  had 
to  resort  to  Chancery.  So  far  from  going  into  court  to  be  relieved 
against  Milby's  equitable  lien  for  purchase  money  the  circumstances 
negative  any  knowledge  on  our  part  that  such  a  lien  existed  or  was 
pretended.  The  case  therefore,  in  18  Johnson  and  the  other  autho- 
rities are  beside  the  question.  That  was  the  case  of  a  purchaser  with- 
out notice  going  into  court  solely  to  avoid  the  equitable  lien.  A  good 
deal  of  refinement  has  been  elaborated  about  the  form  of  this  defence 
and  the  mode  of  setting  it  up.  But  it  is  to  be  remembered  that  this 
is  not  what  brought  us  into  court.  It  is  a  matter  coming  up  collate- 
rally, and  not  any  part  of  the  relief  sought;  the  lien  is  set  up  on  the 
other  side,  and  to  this  we  are  entitled  to  reply  the  want  of  notice,  to 
avoid  it.  We  act  here  as  defts.  and  not  as  complainants.  Where  the 
claim  is  against  a  purchaser  I  admit  he  is  to  set  up  this  defence  by 
way  of  plea  with  the  requisites  contended  for  on  the  other  side. 
Their  argument  on  this  subject  rests  on  the  assumed  fact  that  Milby 
has  been  in  possession,  which  we  deny.  From  the  date  of  Milby^s 
deed  the  land  was  in  possession  of  tenants,  who  became  the  tenants 
of  Budd  and  Tuft.  The  attornment  is  the  act  of  the  law.  Mr. 
Hazzard  says  in  his  deposition,  that  he  understood  Budd  took  the 
rents  of  one  of  the  farms.  It  is  alleged  that  Milby  has  an  equity 
which  the  court  will  protect;  and,  as  we  come  into  court  asking  its 
aid  in  relation  to  another  matter,  they  will  enforce  that  equally  against 
us.  I  admit  that  in  some  cases,  the  court  will  do  it,  but  not  in  such 
a  case  as  this.  The  rule  is  only  applicable  to  mere  equities.  We 
don't  stand  here  on  a  mere  equitable  title;  we  have  a  legal  title,  and 
an  equity  that  entitles  us  to  inquire  into  a  transaction  affecting  our 
legal  title.  The  equity  in  favor  of  a  purchaser  without  notice  is  pe- 
culiarlv  strong.  He  is  more  favoured  than  the  holder  of  dormant 
liens.  ^Fonh.  321,  50;  Sugd.  732-3-4;  1  Mad.  Ch.  526.  We  deny 
that  Milby  has  any  equitable  lien.  It  was  divested  by  his  sale 
to  complainants.  The  rule  is  that  an  alienation  removes  the  lien  un- 
less the  notice  appears  affirmativelv-  Notice  must  be  brought  home 
to  the  alienee.  Where  is  the  evidence?  One  of  the  cases  cited  is 
that  a  knowledge  of  the  lien  by  an  agent,  is  constructive  notice  to 
the  principal ;  the  other  cases  amount  to  this,  that  a  knowledge  of  a 
fact  which  necessarily  leads  to  a  knowleds:e  of  the  lien  is  notice. 
They  say  Milby  was  in  possession ;  but  the  testimony  contradicts 
this,  and  his  answer  is  not  evidence.  The-  question  in  the  cause 
comes  do-svn  to  this,  whether  we  are  purchasers  with  notice  of  the 
lien,  and  whether  that  notice  has  been  proved  to  the  satisfaction  of 
the  court.  3  Russel  488;  2  Vern.  636:  1  T.  R.  763;  Co.  L.  2906, 
513;  4  Wheat.  292,  n.;  3  do.  449,  50;  1  Peters  241;  1  Vern. 
445. 

Mr.  Bavard,  for  appellants,  in  reply. 

We  can't  agree  that  the  caso  comes  down  to  the  single  question 
stated  in  the  conclupion  of  Mr.  Rosrers'  remarks. 

First.  The  lien  of  the  vendor  for  his  purchase  money  is  general; 
the  case  of  a  purchaser  without  notice  is  an  exception.  Even  here 
it  exists,  but  there  is  a  counter  equity  that  prevents  its  operation. 


BUDD  ET  AL.   VS.  BUSTI  &  VaNDEKEMP.  73 

The  vendee  is  a  trustee  to  the  vendor  as  to  unpaid  purchase  money. 
Examines  4  Wheat.,  and  doubts  it.  The  judges  of  the  Supreme 
Court  are  constitutional  lawyers.  Their  authority  is  high  and 
unequalled  in  constitutional  questions;  but  coming  from  different 
states  where  the  common  law  has  been  adopted  in  greater  or  less  ex- 
tent, and  more  or  less  modified,  they  are  not  of  such  authority  as  the 
English  decisions.  The  case  itself  shows  looseness;  omits  notices 
of  the  cases  cited  in  Amh.,  cites  1  Br.  Ch.  Rep.  incorrectly.  The 
doctrine  of  equitable  liens  is  founded  on  the  doctrine  of  trusts.  The 
court  must  always  look  to  the  conscience  of  the  matter.  The  rules 
on  the  subject  are  well  established  in  England,  and  imder  the  consti- 
tutional provision  this  court  will  conform  itself  to  these  rules.  It 
may  be  that  this  question  of  equitable  lien  is  new;  but  the  doctrines 
of  trust  are  fully  adopted,  and  this  is  a  branch  of  them.  A  vendor 
sells  his  land  and  gives  a  deed  with  a  receipt  on  it  without  receiving 
the  purchase  money;  the  vendee  is  his  trustee  until  it  is  paid.  And 
it  is  the  very  case  for  Chancery.  Without  its  aid  to  affect  the  con- 
science of  the  vendee,  he  might  hold  the  land  without  payment  of 
the  purchase  money.  There  can  be  no  doubt  that  as  between  ven- 
dor and  vendee  the  Court  of  Chancery  must  enforce  this  lien;  and, 
if  you  once  establish  the  lien,  it  must  affect  all  subsequent  purchasers 
with  notice.  It  is  so  with  all  trusts  affecting  third  persons  with 
notice.  Implied  notice,  on  all  the  principles  of  equity,  is  as  avnil- 
able  as  express  notice ;  and  whatever  is  sufficient  to  put  a  man  on  his 
guard  in  relation  to  a  lien,  is  sufficient  to  charge  him  with  implied 
notice.  "\Mthout  the  adoption  of  this  rule  the  court  cannot  prevent 
fraud,  and  execute  the  rights  of  vendors  against  fraudulent  vendees. 
The  English  rule  is  that  all  persons  are  affected  by  this  lien  except 
purchasers  for  valuable  consideration  without  notice,  and  mortgagees 
who  have  loaned  money  on  the  faith  of  the  land.  Perhaps  it  ought 
to  be  extended  here  to  judgment  creditors  who  have  loaned  money 
on  the  faith  of  the  land ;  but  not  to  general  creditors  obtaining  judg- 
ment. Purchase  for  valuable  consideration  without  notice,  is  a  posi- 
tive bar  to  the  lien.  It  must  be  pleaded  with  certain  formalities, 
some  of  which  grow  out  of  his  position ;  his  oath,  to  disprove  actual 
notice ;  and  tlie  averment  that  his  vendor  was  in  possession,  to  nega- 
tive constructive  notice.  These  are  necessary  to  establish  his  inno- 
cence, and  entitle  him  to  protection.  "Without  now  inquiring  whe- 
ther this  defence  can  be  set  up  by  a  complainant,  we  may  assume 
that  as  such  he  is  not  released  from  any  of  the  obligations  that  would 
be  incumbent  on  him  in  making  defence  as  a  deft.  The  complain- 
ants here  have  complied  with  none  of  these  requisites:  not  even  aver- 
red that  Budd  was  in  possession.  They  might  have  amended  their 
bill,  or  replied  specially  to  the  answer.  These  omissions  would  be 
fatal  to  them  as  def ts. 

But  they  are  not  pvrcliasers  for  valuable  consideration.  They 
are  either  trustees  to  Budd  and  stand  in  the  same  condition  with  him, 
or  they  are  his  mortgagees.  The  form  of  a  mortgage  is  not  material 
if  it  be  substantially  one.  As  a  mortgage  the  deed  is  void  by  our  law, 
it  not  being  recorded ;  and  if  they  are  assignees  to  pav  debts,  they  are 
mere  voluntary  purchasers,  and  bound  by  the  lien  without  notice. 


74  BCDD  ET  AL.  VS.  BUSTI  &  VaNDEKEMP. 

But  as  to  the  notice.  Milby  swears  he  was  never  out  of  possession, 
and  we  take  the  principle  to  be  that  it  is  notice  of  a  lien  to  a  purcha- 
ser if  his  vendor  is  not  in  possession,  for  possession  is  prima  facie 
evidence  of  title,  and  the  want  of  it  is  sufficient  to  put  the  party  on 
inquiry  as  to  the  title.  The  depositions  of  the  tenants  show  that 
they  rented  of  Milby  and  paid  him  the  rents ;  they  do  not  even  know 
the  other  parties.  Milby  distrained  for  rent;  built  houses;  was  as- 
sessed with  the  property  and  paid  the  taxes.  The  whole  case  ?»•.  ^ 
the  decree  show  that  Milby  was  in  possession;  and  he  is  directca 
by  the  decree  to  account  for  the  rents  and  profits. 

Complainants  come  into  court  for  a  legal  title,  not  with  one;  they 
cannot  recover  at  law  until  they  avoid  Jones'  deed.  They  pray 
therefore,  to  be  relieved  against  this  deed,  which  Milby  resists  on  the 
ground  that  he  purchased  from  Jones  for  a  valuable  consideration,  and, 
having  a  prior  equity,  (his  lien)  they  are  not  entitled  to  relief  against 
him  without  satisfying  this  equity.  1  T.  R.  763.  Milby  swears  that 
Jones  told  him  he  ^ave  a  valuable  consideration  for  this  deed,  admit- 
ting at  the  same  time,  that  he  knew  there  was  a  subsequent  deed  from 
Budd  to  Busti  and  Vandekemp,  but  which  he  knew  was  not  recorded. 
He  therefore  bought  in  Jones'  title  to  protect  his  previous  equity. 
He  gave  a  valuable  consideration  for  this  purchase.  Solemnly 
denies  that  he  knew  there  was  no  consideration  for  the  deed  from 
Budd  to  Jones. 

As  to  the  policy  of  recognizing  these  liens  in  this  countr3^  The 
objection  of  secret  liens  does  not  apply.  This  is  not  a  secret  lien. 
As  between  vendor  and  vendee  the  lien  can  be  no  secret,  for  he 
must  know  whether  the  purchase  money  is  paid:  and  complainants 
stand  charged  here  with  notice  of  the  lien.  As  purchasers  with  no- 
tice they  have  no  equity  as  against  Milby. 

Curia  advisare  vult. 

At  the  June  Term,  1833,  a  majority  of  the  court  reversed  the  de- 
cree of  the  Chancellor,  so  far  as  to  declare  that  Milbv  was  entitled 
to  receive  the  balance  of  the  consideration  money  still  due  on  the 
sale  of  the  land.  The  court  did  not  deliver  any  opinion  at  length, 
but  it  was  understood  that  the  question  of  equitable  lien  was  not  fully 
decided.  Ch.  Jos.  Clayton  went  on  the  ground,  that  the  deed  from 
Jones  to  Milby  was  not  proved  to  his  satisfaction  to  be  fraudulent. 
Harrington  J  .went  more  on  the  ground  of  the  equitable  lien,  Milby 
having  never  been  out  of  possession.  He  thought  it  a  strong  case 
of  negligence  on  the  part  of  complainants  the  subsequent  purchasers 
of  this  land ;  there  being  other  circumstances  in  the  case,  besides  the 
possession  of  Milby,  that  ought  to  have  put  them  on  their  guard  as 
to  title.  The  Chancellor  and  Chief  Justice  were  both  disinclined 
to  adopt  this  doctrine  of  liens :  but  TIarrinaton  thought  the  court 
bound  to  recoffnize  it.  It  has  been  the  established  doctrine  of  the 
courts  of  eouitv  in  England  ever  since  the  adoption  of  our  constitu- 
tion, mid  our  courts  of  equity  are  organized  on  the  same  principles 
with  theirs;  it  results  too  from  the  flrenoral  doctrine  of  trusts,  which 
is  fullv  pstflblished  in  our  courts.  It  mav  be  that  these  liens  are  im- 
politic in  this  country;  but  he  thought  the  legislature  should  change 
thp  law  if  it  was  thought  ne^pssarv  to  adopt  a  different  rule. 

The  Chancellor  was  for  affirming  the  decree. 


SUPERIOR  COURT, 

FALL  SESSIOl^S, 

1832. 


ANTHONY  SPENCER,  free  negro,  vs.  JACOB  D.  DUTTOX,  Ad- 
ministrator, &c. 

If  a  plea  in  abatement  conclude  in  bar,  the  plff.  may  treat  it  as  a  plea  in  bar, 
and  the  judgment  will  be  final. 

Plea  in  abatement.     Demurrer  and  joinder. 

The  declaration  was  in  trespass  quare  clausum  fregit  against  Jo- 
seph Button.  His  death  was  suggested  and  Jacob  Button,  his  ad- 
mimstrator,  admitted  a  party  deft.  Plea  in  abatement  and  general 
demurrer. 

Mr.  Frame  for  plff.  The  act  of  assembly,  (Dig.  224,)  saves  the 
abatement  of  the  suit.  All  personal  actions  except  assault  and  bat- 
tery, -&c.,  survive.  The  conclusion  of  this  plea  in  abatement  is  a 
prayer  of  general  judgment;  consequently,  if  the  action  don't  abate 
the  judgment  on  that  plea  must  be  general,  quod  recuperet  and  not 
of  respondeat  ouster.  Tf  a  plea  in  abatement  conclude  in  bar,  it  is 
a  plea  in  bar,  and  the  judgment  shall  be  general.  1  Ch.  P.  446;  1 
Sell.  Pr.  274. 

Mr.  Layton,  contra.  This  is  not  a  general  plea  in  abatement, 
but  of  matter  arising  since  the  last  continuance.  If  the  cause  of  ac- 
tion survive,  the  judgment  can  only  be  one  of  respondeat  ouster. 
!For  injuries  to  real  property  the  action  don't  survive.     1  Ch.  PI.  83. 

Btj  the  Court. —  The  rule  is  that  if  a  plea  in  abatement  conclude 
in  bar,  the  other  side  may  treat  it  as  a  plea  in  bar;  and,  if  he  do  so, 
the  judgment  will  be  final,  quod  recuperet.  Gould's  PI.  299.  In 
this  case  the  demurrer  concludes  with  a  prayer  of  judgment  respon- 
deat ouster,  thus  treating  it  as  a  plea  in  abatement  only:  the  judg- 
inent  therefore,  in  this  case,  will  be  that  the  defendant  answer  over. 
There  is  no  doubt  about  the  surviving  of  the  action  under  our  act  of 
assembly. 

Judgment,  quod  respondeat  ouster. 

Frame  for  plfF.     Layton  for  deft. 


76  Prichabd's  Adm'r.  vs.  Culver. 

WILLIAM  ELLIS  Adm'r.  of  RACHEL  PRICHARD  vs.  MOSES 

CULVER. 

Replevin  will  not  lie  by  the  part  owner  of  a  chattel  for  his  undivided  share. 

If  the  narr  contains  a  sufficient  cause  of  action  with  matter  not  actionable,  it 
will  be  intended  aiter  verdict  that  damages  were  given  only  for  the  action- 
able part;  and  this  though  there  be  but  one  count. 

Replevin.  Karr.  Pleas,  non  cepit  and  property.  Replication 
and  issues. 

The  declaration  contained  but  one  count,  which  was  for  taking 
sundry  goods  of  plff.,  to  wit:  beds  and  furniture;  table;  chest;  hogs; 
sheep;  cow;  colt  and  one-third  of  four  and  a  half  stacks  of  fodder. 

The  plff.  had  a  verdict  for  $91  50,  the  value  of  the  property 
claimed;  whereupon.  Frame  moved  in  arrest  of  judgment. 

Frame  for  deft.  This  is  an  action  of  replevin.  The  plea  is  non 
cepit.  The  property  claimed  is  (inter  alia,)  one-third  of  four  and 
a  half  stacks  of  fodder.  Replevin  will  not  lie  for  the  part  of  an  un- 
divided chattel.  This  action  is  for  the  taking  a  chattel ;  for  a  wrong 
to  the  possession.  It  goes  for  a  restoration  of  the  chattel  in  specie ;  to 
recover  the  lost  possession.  It  follows  from  the  nature  of  the  remedy 
that  it  cannot  lie  for  an  undivided  part  of  a  chattel,  for  specific 
possession  cannot  be  had  of  such  a  share ;  nor  can  any  delivery  of  it  be 
made.  The  sheriff  is  commanded  to  deliver  possession  of  the  thing; 
he  cannot  divide  it,  for  his  functions  are  ministerial  merely,  and  not 
judicial ;  neither  can  he  deliver  the  whole,  for  that  would  be  a  wrong 
to  another.    No  judgment  therefore  can  be  rendered  on  this  verdict. 

Layton  for  plff.  The  deft,  should  have  demurred  if  this  objection 
be  good.  But  it  is  not  good.  He  has  pleaded  property,  as  well  as 
non  cepit.  By  this  plea  the  parties  agree  what  property  is  intended. 
We  do  not  go  for  a  return,  but  for  damages  on  account  of  the  taking 
and  detention.  Detinue  is  the  only  action  wherein  the  specific  chattel 
can  be  recovered.  2  Saund;  1  Chitty  162.  After  verdict  judgment 
shall  not  be  arrested  for  error  in  the  form  of  action.    8  D.  L.  48. 

Frame  in  reply.  We  do  not  object  to  the  uncertainty  of  the  de- 
scription of  the  property,  but  that  the  action  is  brought  for  a  species 
of  property  that  cannot  be  recovered  in  this  form  of  action. 

Cur.  adv.  vult.  (a) 

The  Court  at  the  April  term  following  refused  to  arrest  the  judg- 
ment. Judgment  for  plff. 
.   Layton,  for  plff.     Frame,  for  deft. 

(o)  in  actions  ex  delicto,  if  a  party  who  ought  to  be  joined,  be  omitted, 
the  objection  can  only  be  taken  by  plea  in  abatement,  or  by  apportionment 
of  damages  at  the  trial;  and  deft,  cannot  as  in  actions  ex  contractu  give  in 
evidence  the  non-joinder  as  a  ground  of  nonsuit  on  the  plea  of  the  general 
issue,  or  demur,  or  move  in  arrest  of  judgment  or  support  a  writ  of  error, 
though  the  non-joinder  appear  on  the  face  of  the  declaration.  1  Ch.  PI. 
57.  note  2.  But  in  an  action  of  replevin  brought  by  one  part  owner  of  a 
chattel  after  verdict  for  plff.,  the  judgment  was  arrested.  Cites  Hart  vs. 
Fitzgerald.  2  Mass.  Rep.  589. 

Replevin  —  2  counts.  1.  for  A's  undivided  right  in  450  spruce  logs. 
2nd.  for  the  undivided  half  of  450  spruce  logs.    Deft,  avows  the  taking 


Jones  vs.  Wootten.  77 

NEGKO  BEN.  JONES  vs.  EDWARD  WOOTTEN. 

The  issue  of  manumitted  slaves  born  after  the  manumission  but  before  the 
period  of  its  taking  full  effect  were  slaves  for  life  before  the  act  of  1810. 

That  act  not  to  have  a  retroactive  effect,  though  declaratory  in  its  terms. 

It  is  not  competent  to  the  Legislature  to  declare  what  the  law  has  been,  or  is; 
that  belongs  to  the  courts. 

Statutes  are  to  be  construed  consistently  with  the  fundamental  principles  of 
justice;  and  the  court  will  not  give  an  interpretation  which  takes  away 
vested  rights  if  the  act  is  susceptible  of  any  other;  nor  will  the  court  infer 
an  intention  of  making  an  act  retrospective. 

The  issue  follow^  the  condition  of  the  mother. 

Petition  for  freedom. 

The  mother  of  the  petitioner  was  a  slave,  and  by  the  will  of  her 
master,  dated  12  May  1797,  was  manumitted  in  these  words:  "I 
give  to  my  daughter  Betsy  my  negro  girl  Ehoda  until  she  arrives 
at  the  age  of  30  years,  then  to  have  her  freedom  from  slavery.^' 
The  peitioner  was  born  in  1805,  before  the  mother  attained  the  age 
of  30  years. 

Mr.  Thos.  Robinson,  for  petitioner,  cited  the  act  of  1810.    Dig.  409. 

Bayard,  for  respondent.  The  common  law  of  the  State  recog- 
nizes slavery:  it  is  a  condition  existing  among  us  previous  to  any 
statutory  provisions.  The  presumption  is  that  negroes  are  slaves, 
and  until  the  act  of  1797,  the  law  recognized  no  means  of  emanci- 

and  that  the  logs  were  the  property  of  A.,  B.  and  C.  as  tenants  in  com- 
mon, and  that  he  had  attached  B's  right  or  ^.  Verd.  for  plff.  Judgment  ar- 
rested. Parsons  Ch.  Jus.  In  contracts  where  one  sues  where  the  contract 
was  with  two,  the  deft,  may  take  advantage  of  it  on  the  general  issue  with- 
out pleading  it;  a  fortiori  if  it  appears  from  the  plff's  own  shewing.  In 
tort  for  injury  to  a  chattel  where  there  are  several  joint  owners  and  one 
sues  it  cannot  be  taken  advantage  of  on  the  general  issue,  but  must  be 
pleaded  in  abatement  even  if  it  appears  on  the  plff's  own  shewing,  for  defts. 
may  waive  it.  6  Term.  R.  Y66.  Here  the  writ  claims  an  undivided  moiety. 
In  trespass  or  case  damages  are  given.  In  replevin  the  chattel  is  to  be  de- 
livered as  well  as  damages  recovered.  This  chattel  is  not  capable  of  sev- 
erance and  the  whole  or  none  must  be  delivered.  If  the  whole,  he  gets  a 
part  in  which  he  claims  no  property.  There  is  no  case  where  a  part 
owner  has  brought  replevin  for  his  undivided  part  only.  There  is  a 
strong  distinction  between  trespass  where  damages  are  sought,  and  re- 
plevin where  possession  is  claimed.    Judgment  arrested. 

9  Mass.  R.  427.  Gardner  vs.  Dutch.  Replevin  for  76  bags  of  coffee 
shipped  and  stored  with  other  bags,  none  being  marked  or  numbered.  A 
receipt  had  been  given  for  76  bags,  weighing  8991  lbs.  They  were  not 
marked  or  separated  from  the  other  bags.  Verdict  for  plff.  Per  Cur. 
If  the  plff.  was  tenant  in  common  with  W.  and  R,  he  could  not  maintain 
replevin  for  his  undivided  share.  But  he  was  not  a  tenant  in  common. 
He  might  have  had  the  number  of  bags  and  quantity  of  coffee  though  tlio 
bags  were  not  marked. 

It  appears  therefore  that  replevin  will  not  lie  by  the  part  owner  of  an  un- 
divided chattel ;  and,  although  not  pleaded  in  abatement,  advantage  may 
be  taken  of  it  on  motion  in  arrest  of  judgment,  where  the  defect  appoAra 
on  record.  Sed  quere  if  a  count  in  a  narr  contains  a  sufficient  causo  of 
action  connected  with  matter  not  actionable  if  it  will  not  be  intended, 


78  Jones  vs.  Wootten. 

pating  them  from  slavery.  The  mother  of  this  hoy  was  a  slave. 
Her  offspring  follows  that  condition.  She  was  a  slave  at  his  birth 
and  continued  so  until  she  attained  30  years,  when  by  the  operation 
of  the  will  she  became  free.  What  was  she  in  the  mean  time  ?  Her 
natural  condition jvas  slavery;  this  condition  was  altered  only  by  the 
will  and  not  by  that  until  a  certain  time.  In  the  mean  time  she  was  a 
slave  and  her  issues  slaves.  The  right  to  the  issue  is  the  same  with  the 
right  to  the  labor  of  the  slave.  Upon  what  principle  therefore  will  a 
manumission  to  take  effect  at  a  future  day,  destroy  the  right  to  the 
issue  in  the  mean  time,  any  more  than  to  the  services  of  the  mother 
in  the  mean  time.  Does  the  act  of  1810  vary  this.  It  is  said  to  be 
declaratory.  No  legislature  has,  in  this  country,  a  right  to  pass  a 
declaratory  law.  It  may  be  in  England,  but  under  our  written  con- 
stitutions it  must  be  different.  We  have  distinct  branches — Legisla- 
tive, Judicial  and  Executive.     The  legislature  may  pass  laws  but 

after  verdict,  that  the  damages  were  given  only  for  the  part  that  is  ac- 
tionable and  the  judgment  will  not  be  arrested. 

Oould.  195.  A  declaration,  though  only  of  a  single  count,  may  be  good 
as  to  part  and  ill  for  the  residue;  and,  if  the  whole  be  demurred  to,  the 
plff.  may  have  judgment  for  the  part  good. 

In  slander  where  any  of  the  words  are  actionable  judgment  will  not  be 
arrested  though  the  other  words  are  not.  It  will  be  intended  that  the 
damages  were  given  for  the  actionable  words.  Cro.Eliz.  328,  Y88;  Archh. 
PL  196;  1  Chiity  PI.  384;  2  Sound.  171.  a.  After  verdict  the  court  will 
intend  that  damages  were  only  given  for  the  actionable  part  of  the  decla- 
ration. This  was  an  action  for  cutting  a  canal  through  the  plff's.  land 
and  overflowing  the  same  hy  lealcs,  &c.  and  stopping  water  courses.  The 
cutting  was  authorized  by  law.  General  damages  were  given  and  the 
verdict  was  sustained.  There  was  only  one  count  in  the  narr.  2  Johns. 
R.  283,  Steele  vs.  Western  Loch  Navigation  Comp. 

With  respect  to  actions  of  tort  such  as  trespass  quare  clausum,  or  for 
taking  goods,  trover,  case  for  malfeasance,  or  misfeasance  arid  such  like 
actions  of  tort,  it  seems  fully  and  clearly  established  that  if  one  only  of  two 
or  more  joint-tenants,  parceners,  tenants  in  common,  partners,  executors, 
assignors  of  bankrupt  and  others  who  regularly  ought  to  join,  bring  any 
such  actions,  the  deft,  must  plead  the  omission  in  abatement  and  cannot 
give  it  in  evidence  on  the  general  issue,  or  in  any  other  way,  or  by  pleading 
in  bar  or  in  arrest  of  judgment  or  though  the  matter  be  found  specially  or 
appear  on  the  face  of  the  declaration  or  any  other  pleading  of  the  plff.  1 
Saund.  R.  420  [219, 1.  291.  a.  n.  4.]      6  T.  R.  766,  Addison  vs.  Overends. 

If  divers  considerations  be  mentioned  in  one  assumpsit  and  one  is  void 
and  the  others  good,  and  damages  given  ratione  premissorum,  it  shall  be 
intended  damages  were  given  only  for  those  that  are  good.  1  Ld.  R.  146, 
239. 

In  a  single  count  with  two  allegations  of  damage,  one  actionable  and 
tlie  other  not,  the  court  will  intend  that  damages  were  given  for  the  ac- 
tionable part.    2  Johns.  286-7. 

Courts  of  justice  will  not  encourage  a  man  to  lay  by  and  take  advan- 
tage of  the  mistakes  of  his  adversary  after  verdict,  when  the  same  result 
would  have  taken  place  at  an  earlier  stage.  2  Johns.  571;  Cro.Jac.  664; 
2  Strange  1094;  1  Salk.  129,  364;  1  Days  Cases  in  error  30. 


Jones  vs.  Wootten.  79 

can't  expound  them; — that  belongs  to  the  judiciary.  If  they  don't 
like  the  construction,  legislatures  may  change  it  I'uturely;  but  not 
retrospectively.  This  boy  was  born  before  1810,  and  it  was  not 
for  the  legislature  of  that  year  to  say  what  was  the  law  affecting  his 
condition.  Nor  has  their  declaration  weight  as  authority.  Our  legis- 
latures are  not  competent  to  expound  laws. 

Rodney,  for  petitioner: 

The  mother  of  petitioner  was  a  manumitted  slave.  He  was  born 
after  the  manumission  but  before  the  time  when  the  mother  was  in 
fact  free.  By  the  manumission  an  inchoate  or  reversionary  right  of 
freedom  attached  to  the  condition  of  the  mother;  her  condition  was 
changed  and  she  became  free,  subject  only  to  the  masters  temporary 
and  limited  right  to  her  services.  Her  issue  is  favorably  affected  by 
this  change  in  her  condition — they  are  free.  The  act  of  1810  makes 
them  slaves  for  a  limited  time  beyond  which  time  the  petitioner  has 
advanced. 

Cur.  adv.  vult. 

April  term  1833.  The  Court,  Harrington,  J.  dissenting,  dis- 
missed the  petition.  ♦ 

Black,  J. — George  Vincent  by  his  last  will,  dated  May  12th, 
1797,  bequeathed  as  follows: — "I  give  to  my  daughter  Betsy  my 
negro  girl  Ehoda,  until  she  arrives  to  the  age  of  thirty  years,  then 
to  have  her  freedom  from  slavery." 

The  petitioner  Benjamin  (now  of  the  age  of  twenty-seven  years,) 
is  a  son  of  Ehoda  and  was  born  in  1805,  after  the  death  of  George 
Vincent  and  before  his  mother  attained  the  age  of  thirty  years,  and 
claims  to  be  free  under  the  act  of  1810. 

Whether  the  2nd  section  of  the  act  of  1810  should  be  construed 
as  embracing  children  who  were  living  when  that  law  was  passed 
and  had  been  born  of  female  slaves  manumitted  to  be  free  at  a  fu- 
ture day,  or  whether  it  was  the  design  of  the  legislature,  that  that  sec- 
tion should  be  applied  to  such  children,  are  points  not  free  from 
difficulty.  Tn  construing  statutes  the  following  rules  may  be  consid- 
ered as  Avell  established  by  judicial  decisions,  fully  entitled  to  respect. 

If  a  court  can  give  a  construction  to  a  statute,  consistent  with  the 
fundamental  principles  of  justice  and  reason,  it  is  their  duty  to  do  so. 
1  Bay's  Rep.  93. 

A  court  is  not  to  presume  that  the  legislature  designed  to  take 
awav  a  vested  right,  nor  ought  their  act  to  be  so  construed.  4  Burr. 
2460 ;  6  Johns.  R.  101 ;  1  Bay's  Rep.  199. 

They  ought  not  to  give  to  a  law  a  retrospective  operation  or  action 
if  it  be  susceptible  of  any  other,  unless  it  be  plainly  so  provided  ill 
the  act.     7  Jolxns.  497,  503. 

Is  it  a  question  free  from  doubt  that  the  legislature  of  1810,  de- 
signed that  the  2nd  section  should  apply  to  children  then  in  exis- 
tence of  such  manumitted  female  slaves,  or  cannot  the  act  be  con- 
strued consistently  with  its  provisions,  without  giving  it  such  a  re- 
trospective operation,  and  if  it  can,  should  it  not  be  so  construed  ? 

The  first  section  provides  that  if  by  any  deed  of  manumission  or 
last  will  any  slave  Jinth  been  or  thereafter  shall  be  declared  to  be 
free  after  serving  a  limited  time,  he  or  she  shall  in  the  monntime. 
until  the  term  for  which  he  or  she  shall  be  held  to  service  (has  ox- 


so  Jones  vs.  Wootten. 

pired,)  be  deemed  to  be  a  slave.  This  was  designed  to  remove  the 
doubts  that  were  or  might  be  entertained  as  to  the  character  or  con- 
dition of  those  who  had  been  or  should  be  thus  manumitted.  It 
did  not  alter  or  change  the  deed  of  manumission  or  its  terms,  or  the 
rights  either  of  the  master  or  the  slave,  or  any  law  existing  in  rela- 
tion to  negroes  so  circumstanced:  but  enacted  as  the  law,  neither 
more  nor  less  than  what  the  deed  of  manumission  itself  declared, 
that  they  were  not  free  until  the  term  had  expired,  and  till  then  re- 
mained slaves,  whether  the  writing  by  which  their  freedom  was  secu- 
red, was  executed  before  or  after  that  act  passed.  This  section  intro- 
duced no  new  rule,  but  recognized  what  must  before  its  passage  have 
been  considered  as  the  law,  and  which- the  deed  or  will  plainly  pointed 
out,  viz :  that  on  a  certain  future  day  they  should  be  free ;  of  course, 
till  that  day  arrived  they  were  not  free;  their  condition  was  not 
changed,  but  remained  as  it  had  been,  that  of  slavery. 

The  second  section  provides  that  the  children  of  any  such  female 
negro  horn  within  the  said  term  of  service,  shall  be  in  like  manner 
deemed  and  taken  to  be  slaves;  the  males,  until  they  arrive  to  the 
age  of  twenty-five,  and  the  females  to  twenty-one.  We  may  with- 
out straining  the  language  of  this  section,  construe  it  to  embrace 
children  born  hefore  its  passage.  It  does  not  plainly  and  unequi- 
vocally exclude,  nor  does  it  plainly  and  unequivocally  include  chil- 
dren previously  born.  It  does  not  say  as  well  those  heretofore,  as 
those  hereafter  born.  This  would  have  been  unequivocal  language; 
but  merely  those  horn  within  the  said  term  of  service.  Now  if  we 
construe  those  words  to  mean  those  born  within  the  term  of  service 
to  whom  such  a  provision  could  according  to  the  fundamental  prin- 
ciples of  legislation  apply,  that  is,  to  those  born  after  the  passage  of 
the  law  within  the  term  of  service,  we  give  it  a  construction  that 
makes  the  act  consistent  with  the  principles  of  reason  and  justice, 
and  such  a  one  as  the  legislature  had  the  power  constitutionally  to 
pass ;  a  prospective  and  not  a  retrospective  act ;  an  act  which  respects, 
not  one  that  violates  vested  rights  or  the  rights  of  property.  It  is 
not  expressly  provided  that  this  act  shall  be  retrospective  It  is 
susceptible  of  being  construed  merely  as  a  prospective  act  without 
doing  violence  to  its  terms  or  language.  ^Are  we  not  then,  according 
to  the  rules  for  construing  statutes  to  which  I  have  referred,  bound 
to  give  it  such  a  construction,  and  thus  relieve  the  legislature  from 
the  imputation  of  transcending  their  legitimate  powers  ? 

Do  not  the  provisions  of  the  7th  section  afford  some  evidence  that 
it  was  not  designed  to  embrace  children  then  born,  within  the  act? 
That  section  requires  a  register  of  the  name,  age  and  sex,  to  be  made 
within  twelve  months  after  its  birth,  of  every  child  of  such  manu- 
mitted female,  bom  after  the  passage  of  that  act.  What  was  the  ob- 
ject of  this  provision,  but  to  secure  to  those  for  whose  benefit  the  act 
was  passed,  a  record  of  their  ages,  that  they  might  have  this  record 
evidence  of  their  right  to  freedom  when  thev  attained  the  age  fixed 
by  the  law.  Now  if  it  was  intended  to  give  children  then  born, 
freedom  at  twenty-five  or  twenty  one,  why  were  not  their  names 
also  directed  to  be  registered,  that  record  evidence  of  their  time  of 
freedom  might  also  be  secured  to  them.  There  however,  is  no  such 
provision  for  them,  and  yet  there  existed  the  same  reason  for  the  re- 


JOXES  VS.  WOOTTEN.  81 

gister  in  the  one  case  as  in  the  other.  May  we  not  then  from  a  con- 
sideration of  the  whole  act  reasonably  infer,  that  the  issue  of  such 
slaves  then  born  were  not  designed  to  be  embraced  within  it,  and 
is  not  this  construction  warranted  by  the  rules  established  for  the 
construction  of  statutes,  and  at  the  same  time  the  most  respectful  to 
the  legislature,  as  it  makes  their  act  a  valid  act  when  an  opposite 
construction  would  compel  us  to  hold  it  to  be  an  invalid  one  ? 

Supposing,  however,  that  this  view  cannot  be  sustained,  and  that 
the  act  of  1810,  embraced  the  issue  of  such  females  then  born,  as 
well  as  those  thereafter  to  be  born,  the  validity  and  bearing  of  such 
an  act  on  children  then  born,  and  on  the  rights  of  the  owners  of  such 
children  must  be  considered. 

If  that  act  is  to  be  considered  as  an  act  declaratory  of  what  the 
law  was  before  its  passage,  it  cannot  as  such  have  any  weight  with 
the  court.  Each  department  of  our  government  must  operate  and  be 
confined  within  its  constitutional  limits.  The  power  that  makes,  is 
not  the  power  to  construe  a  law.  The  legislature  may  declare  what 
the  law  shall  be,  but  not  what  it  is  or  has  been.  That  power  be- 
longs to  the  judicial  department  alone,  and  they  in  discharging  their 
duty  are  to  form  their  own  opinion  and  are  not  to  be  the  mere  organ 
of  the  legislature  and  declare  its  opinion  of  what  the  law  is  or  has 
l)een.  This  proposition  is  one  so  clear  that  the  Supreme  Court  of 
the  XJ.  States,  in  the  case  of  Ogden  vs.  BlacMidge,  2  C ranch  977, 
declined  hearing  an  argument  in  its  support,  and  stopped  the  counsel 
who  was  about  to  sustain  it. 

If  it  cannot  then  avail  as  a  declaratory,  but  is  to  be  considered  as 
a  positive  and  enacting  law,  adopting  a  new  rule  as  to  property,  can 
it  according  to  the  nature  of  society  and  of  government  and  of  those 
general  principles  which  are  common  to  our  free  institutions  (inde- 
pendent of  constitutional  provisions,)  operate  upon  and  alter  rights 
of  property  which  by  the  laws  of  the  land  were  fixed  and  vested  at 
and  prior  to  its  passage  ?  In  relation  to  contracts  or  property  is  an  act 
valid  and  obligatory  which  by  a  retrospective  action  is  to  change  the 
contract,  or  divest  or  abridge  the  rights  of  property  ? 

Is  it  competent  for  a  legislature  to  enact  that  a  title  to  property, 
which  at  the  time  the  property  was  acquired  was  absolute  and  un- 
qualified under  the  existing  laws,  shall  thenceforth  be  a  qualified  or 
limited  title  and  not  an  absolute  one  ? 

Such  positions  would  seem  to  be  in  direct  hostility  to  the  sound 
and  established  principles  of  justice  and  reason,  and  entirely  incon- 
sistent with  the  spirit  of  a  free  and  republican  government.  If  they 
are  to  prevail  they  would  leave  the  rights  of  property  unsecured  by 
fixed  principles  or  a  firm  tenure;  and  at  the  will,  pleasure  or  caprice 
of  each  succeeding  legislature.  A  retrospectire  act,  so  far  as  it  chan- 
ges or  divests  the  vested  rights  of  property,  and  takes  away  that 
property  or  declares  the  title  to  it,  or  tenure  of  it,  to  be  less  valid 
than  by  the  enacting  law  it  antecedentlv  was,  violates  fundamental 
principles,  and  cannot  be  considered  a  valid  or  bindinsr  one.  1  Kent 
448,  454;  7  Johns.  477;  1  Bay's  Rep.  98,  252;  2  Bay's  Rep.  28; 
2  Dallas  310. 

By  the  constitution  of  our  state  the  ri^rht  to  acquire  and  protect 
property  is  declared  to  be  a  right  essential  to  and  inherent  in  every 


82  Jones  vs.  Woottex. 

man.  Tliis  right  cannot  be  fettered,  restrained  or  abridged,  except 
so  far  as  authority  so  to  do  has  been  granted  in  the  same  instrument; 
unless  the  power  be  there  found  it  does  not  exist.  The  only  provi- 
sion which  we  there  find  for  taking  the  property  of  an  individual 
from  him  is  in  the  8th  section  of  the  1st  article,  and  in  these  words: 
"  nor  shall  any  man's  property  be  taken  or  applied  to  puhlic  use 
without  the  consent  of  his  representatives,  and  without  compensa- 
tion being  made." 

The  legislature  cannot  take  from  an  individual  his  property  even 
for  puhlic  use,  without  making  him  compensation. 

To  take  property  from  one  and  grant  it  to  another,  even  if  com- 
pensation be  made,  or  to  take  it  for  the  public  use,  without  compen- 
sation, is  a  power  expressly  denied  to  our  legislature,  and  every  such 
act  is  directly  in  violation  of  that  constitution  and  of  course  void. 

In  this  state  slaves  are  the  subjects  of  property.  If  the  legislature 
can  constitutionally  enact  that  a  person  who  by  the  existing  laws  has 
a  perfect  title  to  the  time  and  services  of  a  slave  for  his  life  shall 
only  hold  that  slave  and  have  the  benefit  of  his  services  till  the  slave 
attains  twenty-five,  why  may  they  not  also  enact  a  law  that  lands 
which  are  held  by  a  man  under  a  devise  to  him  and  his  heirs  for- 
ever shall  only  be  enjoyed  by  the  devisee  ilntil  he  attains  twenty-five, 
and  that  all  his  right  therein  should  then  cease  ?  Where  would  be  the 
difference  in  principle  ?  If  they  can  abridge  or  alter  the  existing  ten- 
ure or  title  of  the  one  species  of  property,  why  can  they  not  alter  the 
other.  The  land  and  the  slave  are  equally  property,  and  why  are 
the  rights  of  the  one  species  of  property  to  be  held  less  sacred  and 
inviolable  than  those  of  the  other.  The  constitution  guarantees 
protection  to  property  of  every  kind  without  any  exception :  estab- 
lish the  position  that  it  is  property  that  is  to  be  touched,  and  you 
find  the  power  of  the  legislature  is  limited  by  broad  constitutional 
lines  beyond  which  it  cannot  pass.  As  long  as  this  unfortunate 
class  of  teings  are  recognized  by  our  laws  as  the  subject  of  property, 
the  general  rules  of  property,  and  of  the  rights  to  property  must 
attach,  and  protection  be  extended  according  to  the  settled  princi- 
ples of  law. 

If  therefore  the  petitioner  was,  before  the  act  of  1810,  a  slave  for 
life,  that  slavery  cannot  be  reduced  to  the  term  of  twenty-five  years 
l)y  that  act, —  the  master  had  a  property  in  him  1)eYond  these  twenty- 
five  years,  which  could  not  be  taken  even  for  puhlic  use  without 
his  being  compensated  —  no  such  comy)ensation  is  provided  by  the  act, 
and  it  is  therefore  unnecessary  to  examine  whether  such  a  taking 
would  be  for  public  use  or  private  benefit. 

Whether  a  law  predicated  on  ])rinciples  of  public  policy  and  safety 
designed  to  attain  an  important  and  general  public  good,  by  relieving 
the  community  from  a  great  and  acknowledged  evil,  operating  alike 
upon  all  this  class  of  propertv,  and  all  the  holders  of  this  class  of 
property,  might  not  be  passed  by  our  legislature,  consistently  with 
those  principles  which  shold  regulate  the  exorcise  of  their  powers, 
by  which  slavery  should  he  altogether  nholished,  is  not  a  question 
now  before  us  and  it  will  1^  time  enouerh  to  pass  on  such  a  case  when 
it  is  presented.  I  mav  however  remark  that  in  the  stnte  of  Pennsvl- 
vania  where  for  more  than  fifty  years,  the  attention  of  their  legislature 


Jones  vs.  Wootten.  83 

has  been  directed  to  the  abolition  of  slavery ;  they  have  not  in  any  in- 
stance, according  to  my  research,  passed  a  law  giving  or  securing 
freedom  to  a  slave  in  being  when  the  law  passed.  Their  legisla- 
tion has  been  prospective  and  not  retrospective.  The  rights  of  pro- 
perty in  slaves  have  invariably  been  respected,  and  the  law  bv  its 
terms  made  to  bear  upon  and  secure  freedom  to  those  only  who 
should  be  born  after  its  passage.  The  provision  of  the  constitution 
of  that  state  in  relation  to  the  security  of  property,  is,  with  the  ex- 
ception of  a  single  word,  the  same  with  that  in  ours.  With  us  com- 
pensation is  to  be  made  —  with  them  it  is  just  compensation. 

The  act  of  1810,  therefore,  whether  it  be  considered  as  a  decla- 
ratory act,  or  an  act  establishing  a  new  rule  of  law,  cannot  govern 
this  case.  This  petitioner  was  born  in  1805.  The  rights  of  the 
master  existed  and  were  fixed  five  years  before  this  act  passed.  What 
those  rights  were,  must  be  ascertained  from  the  then  existing  law 
and  must  prevail.  If  he  then  held  the  petitioner  as  a  slave  for  life, 
the  act  of  1810  cannot  reduce  his  title  to  a  slavery  for  twenty-five 
3'ears.  The  present  case  must  be  decided  as  though  that  statute  had 
never  been  passed. 

Tn  1805  there  existed  no  provision  in  our  statutes  regulating  or 
declaring  the  condition  or  character  of  the  issue  of  female  slaves 
who  were  manumitted  to  be  free  at  a  future  day.  The  condition  of 
the  mother  at  the  birth  of  the  petitioner  must  regulate  his  condition. 
The  rule  —  Partus  sequitur  ventrem  must  prevail  —  if  she  was  free 
then  he  was  free  —  if  she  was  then  a  slave,  he  also  was  a  slave,  for 
there  was  no  intermediate  grade  of  servitude  prescribed  by  the  laic. 
which  could  apply  to  his  case,  nor  was  any  limited  or  qualified  pe- 
riod of  service  secured  to  him  by  the  will  of  Mr.  Vincent.  That 
will  guaranteed  to  the  mother  a  certain  right,  but  none  to  her  issue. 

When  Khoda  attained  the  age  of  thirty  she  was  to  have  "  free- 
dom from  slavery  " —  not  before  —  till  that  period  arrived  she  was  not 
to  be  free  from  slavery,  nor  from  her  legal  condition  as  a  slave,  l)ut 
all  the  disabilities  and  incidents  of  slavery  remained  with  and  were 
attached  to  her :  till  she  attained  thirty  there  was  to  be  no  change  — 
if  that  period  arrived,  then,  and  not  till  then,  her  character  and  con- 
dition of  a  slave  ceased  —  her  condition  was  not  one  of  modified  ser- 
vitude, but  by  the  express  terms  of  the  act  that  of  a  slave.  By  the 
will  of  Mr.  V.  a  right  was  secured  to  her  that  when  she  reached  the 
age  of  thirty  she  should  be  free,  but  if  she  had  died  before  that  age 
no  change  in  her  condition  would  have  taken  place,  but  she  would 
have  died  a  slave.  Ehoda  had  not  attained  the  age  of  thirty  when 
the  petitioner  was  bom,  but  remained  a  slave.  Tis  true,  that  sla- 
very was  to  cease  as  to  her  at  thirty;  but  this  was,  by  the  terms  of 
the  will.  There  was,* as  I  have  said,  no  such  provision  in  the  will 
in  favor  of  her  issue  —  nor  did  there  then  exist  any  law  removing 
from  such  issue  the  chains  or  incidents  of  slavery  for  life.  Would 
it  not  be  an  arbitrary  act  for  this  court  to  say  that  the  petitioner  was 
entitled  to  his  freedom  at  twenty-one  twenty-five  or  thirty,  or  at 
any  other  period  which  they  might  think  proper  to  assume,  when 
in  their  judgment  the  act  of  1810  does  not  apply  to  his  case  —  when 
no  law  existed  at  his  birth  which  made  such  a  provision,  and  when 
the  will  of  Mr.  Vincent  does  not  secure  it  to  him?     Upon   what 


84  Jones  vs.  Wootten. 

grounds  other  than  the  arbitrary  discretion  of  the  court  could  such 
a  period  of  service  be  assumed,  and  such  a  decision  be  founded:  a 
sound  discretion  based  upon  the  law  of  the  land  I  am  willing  to  ex- 
ercise :  but  I  cannot  go  further  —  I  will  not  legislate. 

The  petitioner  at  the  time  of  his  birth,  was,  as  the  law  then  stood 
and  by  which  his  condition  was  fixed  and  is  now  to  be  eoverned, 
either  uncondiiionally  free  or  a  slave  for  life— he  was  not  born  free 
for  his  mother  was  then  a  slave  —  of  coiirse  therefore  he  was  born  a 
slave,  and  that  slavery  was  and  is  for  life,  as  it  is  not  limited  to  a 
shorter  period  by  any  valid  law  which  applies  to  his  case,  or  by  the 
will  of  Mr.  Vincent  the  master  of  the  mother. 

It  is  therefore  my  opinion  that  the  petition  be  dismissed,  (a) 

Clayton,  C.  J.,  concurred  in  opinion  that  the  petition  should  be 
dismissed;  and  it  was  so  ordered. 

Harhington,  J. —  It  was  argued  in  this  case  that  the  condition  of 
slavery  was  recognized  by  the  common  law  of  this  State.  That  it 
conferred  on  the  master  an  unlimited  right  to  the  services  of  the 
slave  and  subjected  the  issue  to  the  same  liability.  A  practice  has 
grown  up,  recognized  and  authorized  by  law,  of  changing  the  con- 
dition of  this  species  of  property  by  manumission  to  be  free  at  a 
future  day:  and  an  important  question  arises  as  to  the  condition  of 
tJie  offspring  of  female  slaves  thus  manumitted,  born  between  the 
act  of  manumission  and  the  period  of  its  taking  full  effect.  By  the 
act  of  manumission  the  mother  acquires  a  vested  right:  the  master 
has  no  longer  an  unlimited  control  over  her  services,  and  it  would 
seem  to  follow,  that  he  had  no  longer  an  unlimited  control  over  the 
services  of  her  offspring.  The  child  follows  the  condition  of  the 
mother.  At  its  birth  the  mother  is  not  in  the  condition  of  absolute 
slavery,  but  only  of  limited  slavery,  owing  services  for  a  limited 
period;  if  the  child  be  in  the  same  condition  it  is  that  of  limited 
slavery,  measured  by  the  term  of  its  mother's  servitude.  This  is 
the  view  I  take  of  the  question  as  it  stood  before  the  act  of  1810. 
The  principle  is  no  doubt  prejudicial  to  the  master  and  imposes  a 
great  hardship  on  him  of  maintaining  the  infant  children  of  his  ma- 
numitted slaves;  but  it  follows  from  the  principles  assumed,  and  is 
a  consequence  of  his  own  act  of  manumission.  The  injustice  of 
such  a  case  as  it  regards  the  master  was  probably  the  origin  of  the 
act  of  1810.  That  act  neither  recognizes  the  unlimited  right  of  the 
master  to  the  services  of  the  issue  of  his  manumitted  slave,  nor  con- 
fines his  right  to  the  period  of  the  mother's  servitude,  but  assumes 
a  reasonable  medium  based  on  the  ground  of  the  limited  right  of  the 
master,  and  compensation  to  him  for  the  expense  of  raising  the 
slave.  It  makes  the  males  slaves  until  35 ;  and  the  females  until  21 
years  old.  This  act  was  passed  on  the  recommendation  of  Governor 
Truitt;  and  it  seems  probable,  from  the  terms  he  uses  in  bringing 
the  subject  to  their  notice,  that  the  legislature  proceeded  rather  on 
the  ground  of  extending  the  time  of  service  as  a  compensation  to 
the  master  than  on  any  idea  of  restricting  any  rights  that  he  pos- 

(a)  See  the  case  of  M'Cutchen  et  al.  i;,<f.  Marshall,  8  Peters  221,  de- 
cided by  the  Supreme  court  in  January  1834,  sustaining  the  last  ground 
in  the  foregoing  opinion. 


Jones  vs.  Woottf.x. 


85 


fessed.  Gov.  Truitt  says  (Journal  If.  R.  1810,  vol.  3,  p.  9.) 
'•  It  has  become  a  frequent  practice  for  masters  to  execute  deeds  of 
manumission  to  their  slaves  by  which  they  are  permitted  to  go  at 
liberty  at  a  future  period,  and  in  the  mean  time  their  services  are 
letained.  So  many  negroes  are  now  in  this  situation  that  it  is  a 
matter  of  great  importance  to  ascertain  what  their  condition  is;  for 
if  it  is  slavery  the  issue  of  female  parents  arc  necessarily  all  slaves: 
on  the  contrary,  if  it  is  freedom,  the  issue  at  the  moment  of  their 
l)irth  are  free  and  owe  no  service  to  the  master.  And  is  the  master, 
iiaving  no  right  to  command  their  services  for  a  single  moment, 
bound  to  maintain  them  in  their  infancy?  the  mother  cannot;  and 
]nust  the  public  be  burdened  with  the  expense?  The  courts,  fore- 
seeing the  inconveniences  which  would  arise  from  a  determination 
of  this  question  in  either  way  by  them,  have  avoided,  as  far  as  I  can 
learn,  making  any  decision;  but  whenever  it  shall  come  directly  be- 
fore them  they  will  be  bound  to  decide  let  the  inconveniences  flow- 
ng  from  that  decision  be  what  they  may;  and  the  legislature  l)eing 
-he  only  proper  authority  competent  to  make  the  necessary  provi- 
sions to  meet  the  exigency  of  the  case,  T  have"  considered  it  my 
duty  to  recommend  it  to  your  notice.''  The  report  of  the  commit- 
tee of  the  House  of  Representatives  on  this  part  of  the  message  de- 
clares : —  1st.  That  manumitted  slaves  are  entitled  to  all  the  ])enefits 
of  bound  servants  and  not  slaves;  2nd.  That  the  issue  shall  l)e  con- 
sidered as  bound  servants  until  the  ago  of  — — ,  and  not  as  slaves  — 

provided  the  master  keeps  and  raises  them. 

It  is  true  that  slavery  is  tolerated  by  our  laws ;  l)ut  it  is  going  too 
far  to  say  that  this  kind  of  property  in  slaves  is  precisely  like  every 
other  species  of  property.  The  spirit  of  the  age  and  the  principles 
of  liberty  and  personal  rights  as  held  in  this  country  are  equally  op- 
posed to  a  doctrine  drawn  from  the  ages  and  the  countries  of  despot- 
ism, and  founded  either  proximately  or  remotely  in  oppression.  Sir 
William  Blackstone  remarks  that  pure  and  proper  slavery  is  con- 
trary to  reason,  and  the  principles  of  natural  law ;  and  he  shows  con- 
clusively that  the  grounds  on  which  slavery  is  placed  by  the 
civil  law  all  rest  on  unsound  foundations.  1  Black.  Com.  450; 
2  Kent  C.  247.  Accordingly  it  has  long  since  been  abolished  in 
England ;  and  in  many,  perhaps  in  most,  of  these  United  States 
it  has  either  been  done  away  or  provision  has  been  made  for  its 
prospective  abolishment.  In  the  state  of  Xew-York,  an  act  of 
assembly  declared  all  children  born  of  slaves  after  the  4th  July, 
1799,  should  be  born  free,  though  liable  to  be  held  until  28  and  25 
vears  of  age ;  and  a  subsequent  act"  declared  that  all  negroes,  &c., 
born  before  the  4th  July,  1799,  should  be  free  after  the  4th  July,  1827, 
at  which  time  slavery  became  extinct  in  that  state.  In  Pennsylva- 
nia, by  the  act  of  1780,  masters  were  required  to  reerister  their 
slaves  and  the  issue  of  such  slaves  born  after  the  acts  were  subjected 
to  a  servitude  of  onlv  28  years.  Vide  1  Dal.  R.  467.  These  provi- 
sions have  been  further  extended  in  favor  of  liberty,  so  that  there 
now  remain  in  that  state,  as  appears  from  a  statement  latelv  made  bv 
a  committee  of  their  legislature,  less  than  one  hundred  slaves  with 
a  certaintv  of  the  speedy  extinction  of  slavery  there.  These  acts 
(and  similar  ones  exist  in  many  other  states,  our  own  included)  deny 


86  LoLLEY  VS.  Xeedham's  Ex'rs. 

to  the  master  that  unqualified  ownership  over  his  slave  and  her  issue 
that  he  possesses  over  other  property;  and  continuing  unrepealed  if 
not  uncontroverted,  upheld  by  the  undoubted  sentiment  of  the  times 
and  the  extended  spirit  of  liberty,  they  establish  a  right  in  the  go- 
vernment to  regulate  this  species  of  property  in  conformity  with  the 
acknowledged  principles  of  reason  and  justice  as  well  as  the  require- 
ments of  public  policy.  It  was  on  this  principle  that  our  legislature 
in  the  act  of  1810,  declared  that  the  children  of  manumitted  slaves 
should  not  be  considered  slaves  for  life,  and  regulated  the  period  of 
their  slavery  upon  principles  of  justice  as  well  to  the  master  as  the 
slave. 

On  the  best  consideration  I  have  been  able  to  give  the  case,  I  re- 
gret that  I  have  not  been  able  to  bring  my  judgment  into  coincidence 
with  that  of  the  other  members  of  the  Court.  I  thing  the  petitioner, 
being  now  25  years  of  age,  is  entitled  to  his  freedom. 

Petition  dismissed. 

Robinson  and  Rodney,  for  petitioner. 

J.  A.  Bayard,  for  respondent. 


SARAH  LOLLEY,  negro  vs.  EZEKIEL  XEEDHAM'S  Ex'rs. 

A  probate  must  disclose  all  the  credits  within  the  plflF's.  knowledge. 
It  is  not  sufficient  to  make  a  general  reference  to  the  defendant's  books  for 
credits. 

Case  for  work  and  labor,  &c.  Common  counts.  Pleas,  non-as- 
sumpsit; payment,  and  act  of  limitations. 

Plff.  proved  the  service,  and  admitted  that  she  had  at  different 
times  received  sundry  sums  of  money  from  deft's.  testator;  at  one 
time  $50  00  at  another  $10,  at  another  $5,  &c. 

She  presented  the  following  probate: 

Doct.  Ez.  Xeedham 

To  Sarah  Lolley,  Dr. 
To  23  years  and  4  months  services  from   1st  October, 
1803,  to   1st  February,   1829,  as  house-keeper,  at  $3 

per  month. $840  00 

The  above  named  Sarah  Lolley  maketh  oath  that  nothing  has  been 
paid  or  delivered  toward  satisfaction  of  her  above  stated  debt,  other 
than  such  payment  as  may  have  been  made  by  the  said  Ezekiel 
Xeedham  in  his  lifetime,  for  the  amount  whereof  she  refers  to  the 
books  of  the  said  deceased,  not  knowing  the  amount  herself ;  and  that 
the  sum  demanded,  after  deducting  such  payments,  is  justly  and 
truly  due.  (Signed)     Sarah  Lolley. 

Sworn  and  subscribed  before  ) 
Wm.  A.  Budd,  J.  P.  I 

Clayton  for  deft's.  moved  a  nonsuit,  for  want  of  sufficient  pro- 
bate. 

Per  Cur.  The  probate  is  not  sufficient.  A  probate  is  for  the 
security  of  the  estate,  and  the  law  requires  that  the  person  making  it 
should  disclose  all  credits  within  his  knowledge.  A  general  ref- 
erence to  the  deft's.  books  without  this,  might  in  many  cases  evade 


Bishop  vs.  Wild's  Au.m'u.  87 

tie  check  which  the  law  designed  to  impose  upon  all  claims  made 
noon  a  deceased  person's  estate.  The  demand  here  is  of  $S40,  with 
a  general  reference  to  the  deft's  books  for  credits,  witliont  si)ecify- 
ing  a  single  credit,  though  it  is  proved  that  the  plff.  has  on  other 
occasions,  admitted  the  receipt  of  specific  sums,  as  being  within  her 
re  collection  and  knowledge. 

Judgment  of  nonsuit. 

Ridgely  for  plff. 

Clayton  and  Bates  for  defts. 


WILLIAM  S.  BISHOP  vs.  JOHX  WILD'S  Adm'r. 

The  proviso  (sec.  10,)  in  the  act  of  limitations,  which  allows  one  year  for  re- 
commencing actions  in  which  the  judgments  have  been  reversed,  &c.,  applies 
to  suits  pending  at  the  date  of  said  law,  and  on  the  1st  Sept.,  when  its  re- 
pealing clause  took  effect. 

A  law  which  enlarges  the  time  for  bringing  suit  beyond  the  time  allowed  by 
the  law  existing  when  the  contract  was  made  is  not  a  law  impairing  the 
oiligation  of  the  contract. 

Quere.  Would  a  law  limiting  the  right  to  sue  to  a  less  time  than  was  allowed 
by  the  law  existing  when  tlie  contract  was  made  be  unconstitutional,  as 
impairing  the  obligation  of  thg  contract? 

In  an  action  on  a  guardian  bond",  the  plff.  must  show  a  sufficient  breach  in  hia 
replication  or  other  pleading,  or  by  suggestion  on  the  record. 

Summons  debt  on  guardian  bond,  with  the  usual  condition. 

Narr  assigning  breaches.  Plea,  the  several  statutes  of  limitation. 
replication  that  suit  was  brought  within  three  years  after  plff.  came 
of  age,  and  recovery  and  judgment  had  thereon ;  that  the  High  Court 
cf  Errors  and  Appeals  reversed  the  judgment,  and  that  this  suit  was 
I  rought  on  the  same  bond  within  one  year  from  the  date  of  the  re- 
\ersal.  Deft,  rejoins  that  plff.  came  of  age  on  the  29th  of  August, 
]824,  and  was  twenty-four  three  years  after,  and  that  tltis  suit  was 
not  brought  until  July  1831.  Plff.  svrrejoins  that  he  brought  suit 
en  said  bond  to  October  Term  1827,  on  which  there  was  judgment, 
and  afterwards  a  reversal  as  aforesaid,  and  new  suit  within  a  year 
tfter;  and  that  the  first  suit  was  pending  when  the  limitation  act  of 
1829  was  passed. 

General  demurrer  to  this  surrejoinder,  and  joinder  in  demurrer. 

Plff.  came  of  age  29th  August,  1824.  The  first  suit  was  brought 
8th  August,  1827,  and  judgment  for  plff.  in  the  Supreme  Court, 
^^^hich  judgment  was  reversed  by  the  High  Court  of  Errors  and  Ap- 
])eals,  at  the  June  Term,  1831,  (a)  and  the  present  suit  brought  with- 
in one  year  thereafter.  Act  of  1760,  (1  vol.  424,)  sec.  14,  pro- 
fa)  THOMAS  WALLACE,  Adm'r.  of  JOHN  WILDS,  d.  b.  appln't  vs. 
WILLIAM  S.  BISHOP,  Plff.  b.  respondent. 

High  Court  of  Errors  and  Appeals,  June  Term,  1831. 

Writ  of  Error  to  the  Justices  of  the  Supreme  Court  of  the  state  of  Dela- 
ware, in  and  for  Kent  county.  Cor.\m  Harrington,  Ch.  Jus.  Supreme 
C!ourt;  Clayton,  Ch.  Jus.  Com.  Pleas;  Cooper  and  Stout  Justices.  The 
Chancellor  did  not  sit,  he  having  been  Chief  Justice  of  the  Supreme 
Court  when  the  cause  was  tried  below. 

This  was  an  action  on  a  guardian  bond  against  Thomas  Wallace,  the 
administrator  of  John  Wilds,  wlio  was  one  of  the  sureties  of  Lewis  Wil- 
liams, in  his  guardianship  of  William  S.  Bishop. 


88  Bishop  vs.  Wilds'  Adm'r. 

vides  that  all  actions  on  guardian  bonds  shall  be  commenced  within 
.s-ix  years  after  the  passing  of  said  bonds,  saving  the  rights  of  per- 

Nan:  The  narr  was  filed  generally,  without  setting  forth  the  condition 
of  the  bond  or  assigning  breaches.  The  deft,  craved  oyer,  and  pleaded 
I>erf ormance ;  stat.  limitations ;  plene  administravit  and  payment.  Repli- 
cation to  the  plea  of  the  statute;  infancy  and  suit  brought  within  three 
years  after  full  age;  rejoinder  and  issue.  To  the  plea  of  plene  adminis- 
travit, replication  denying  the  plea  and  tendering  issue;  similiter  and 
issue.    The  plea  of  payment  was  withdrawn. 

Plea.  The  case  turned  upon  the  first  plea  of  performance,  and  the  repli- 
cation thereto.  The  plea  of  performance,  after  noticing  the  prayer  and 
grant  of  oyer  sets  forth  the  bond  and  condition.  The  bond  was  executed 
by  Lewis  Williams,  John  Wilds,  Maskline  Clarke  and  James  Spear,  to 
William  S.  Bishop,  minor,  in  the  sum  of  $3,000,  with  condition  that  if  the 
said  Lewis  Williams  should  faithfully  discharge  his  trust  as  guardian  of 
the  said  Wm.  S.  Bishop,  "  and  shall  and  do  well  and  truly  pay  and  de- 
liver, or  cause  to  be  paid  and  delivered  unto  the  above  named  William  S. 
Bishop,  his  heirs,  executors,  administrators,  or  assigns,  all  such  sum  or 
sums  of  money  and  other  estate  that  shall  come  to  his  hands  or  possession 
as  guardian  of  the  said  Wm.  S.  Bishop,  deducting  thereout  such  reason- 
able sum  as  the  Register  for  the  probate  of  wills  and  granting  letters  of 
administration  for  the  county  of  Kent  aforesaid  should  allow  for  the  said 
guardian's  care  and  trouble  in  managing  the  estate  of  the  said  Wm.  S. 
Bishop,"  then  the  bond  to  be  void.  The  plea  then  stated,  in  the  words  of 
the  bond,  that  Lewis  Williams  did  discharge  the-  trust  in  him  reposed  as 
guardian,  and  "  did  well  and  truly  pay  and  deliver,  or  cause  to  be  paid 
and  delivered  unto  the  above  named  Wm.  S.  Bishop,  all  sum  and  sums  of 
money  and  other  estate  that  did  come  to  his  hands  or  possession,  as  guar.- 
dian  of  the  said  Wm.  S.  Bishop,  after  deducting  thereout,  such  reason- 
able sum  as  the  Register  for  the  probate  of  wills  and  granting  letters  of 
administration,  for  the  county  of  Kent  aforesaid,  did  allow  for  the  said 
guardian's  care  and  trouble  in  managing  the  estate  of  the  said  Wm.  S. 
Bishop,  according  to  the  tenor  and  effect,  true  intent  and  meaning  of  the 
condition  "  of  the  bond  aforesaid;  and  the  plea  concluded  with  a  verifica- 
tion. Replication  to  this  plea:  precludi  non,  because  he  saith  that  the 
said  I^ewis  Williams  did  not  discharge  his  trust  as  guardian,  &c.,  "  and 
did  not  well  and  truly  pay  and  deliver,  or  cause  to  be  paid  and  delivered 
unto  the  said  Wm.  S.  Bishop,  all  such  sum  and  sums  of  money  and  other 
estate,  that  did  come  to  the  hands  or  possession  of  the  said  Lewis  Wil- 
liams, as  guardian  of  the  said  Wm.  S.  Bishop,  after  deducting  thereout 
such  reasonable  sum  as  the  Register  for  the  probate  of  wills  and  granting 
letters  of  administration,  for  the  county  of  Kent  aforesaid,  did  allow  for 
the  said  guardian's  care  and  trouble,  in  managing  the  estate  of  the  said 
Wm.  S.  Bishop,  according  to  the  tenor  and  effect,  true  intent  and  mean- 
ing of  the  said  writing  obligatory,  to  wit,  at  &c. ;  hut  that  the  said  Lewis 
Williams,  the  said  guardian  as  aforesaid,  from  the  said  date  of  the  said 
writing  obligatory  as  aforesaid,  and  on  divers  other  days  and  times,  from 
the  date  of  said  writing  obligatory,  until  the  day  of  the  date  of  suing  out 
and  exhibiting  the  writ  aforesaid  in  this  behalf,  against  the  said  Thomas 
Wallace,  administrator  as  aforesaid,  to  wit,  at,  &c.,  by  the  said  Wm.  S. 
Bishop,  had  and  received  as  guardian  of  the  said  Wm.  S.  Bishop,  and  for 
and  on  account  of  the  said  Wm.  S.  Bishop,  divers  sums  of  money  and 
other  estate,  amounting  in  the  whole,  to  a  large  sum  of  money,  to  wit,  to 


BisHor  vs.  \YiLDs'  Adm'r. 


89 


sons  within  the  age  of  twenty-one  years,  &c.,  of  bringing  suit  within 
three  years,  after  coming  of  full  age. 

$3,000,  lawful  money,  &c.  Yet  the  said  Thomas  Wallace,  although  often 
requested  as  administrator  as  aforesaid,  so  to  do,  hath  not  yet  accounted 
for,  or  paid  over,  or  delivered  to  the  said  Wm.  S.  Bishop,  the  said  sum  of 
$3,000,  or  any  part  thereof,  but  hath  therein  wholly  failed  and  made  de- 
fault; and  the  said  sum  of  money  so  had  and  received  by  the  said  Lewis 
Williams,  as  aforesaid,  is  still  wholly  unpaid  and  unsatisfied  to  the  said 
Wm.  S.  Bishop,  contrary  to  the  form  and  effect  of  the  said  condition  of 
the  said  writing-  obligatory,  to  wit,  at,  &c.,  and  this  he  the  said  Wm.  S. 
Bishop,  prays  may  be  inquired  of  by  the  country,  &c." 

Demurrer.  To  this  replication  the  deft,  demurred,  generally  and  spe- 
cially; and  assigned  for  cause  of  demurrer,  "that  the  said  replication 
does  not  contain  any  sufficient  averment  of  time  when  moneys  belonging 
to  him,  the  said  Wm.  S.  Bishop,  came-  to  the  hands  and  possession  of  the 
said  Lewis  Williams ;  and  for  that  the  said  Wm.  S.  Bishop,  in  his  repli- 
cation aforesaid,  doth  not  aver  that  the  said  L.  Williams  did  not  in  his 
lifetime,  pay  and  deliver  to  the  said  Wm.  S.  Bishop,  all  the  moneys  and 
estate  which  came  to  his  hands,  as  guardian  of  the  said  Wm.  S.  Bishop." 

The  plif.  joined  in  demurrer.  On  argument,  demurrer  overruled;  and 
it  was  ordered  by  the  court,  that  the  deft,  join  issue  to  this  replication  to 
the  plea  of  performance.  Issue ;  trial,  and  verdict  for  plff.  for  $791  09 
damages  assessed  on  occasion  of  the  breaches  assigned  in  the  replication. 

Assignment  of  errors.  1st.  For  that  there  is  no  sufficient  assignment  of 
a  breach  in  the  replication  or  other  pleadings,  or  by  way  of  suggestion  on 
the  record.  2nd.  For  that  no  time  is  set  forth  at  which  the  said  sum  of 
$3,000,  was  received  by  the  said  Lewis  Williams.  3rd.  It  is  not  averred 
that  L.  Williams  did  not  in  his  lifetime,  pay  the  said  Wm.  S.  Bishop,  the 
said  sum  of  $3,000,  but  only  that  Thomas  Wallace  did  not  pay  it.  4th.  It 
is  not  averred  that  L.  Williams  received  the  sum  of  $3,000,  during  the 
minority  of  the  said  Wm.  S.  Bishop.  5th.  For  that  the  replication  afore- 
said does  not  show  what  .part  of  the  said  $3,000  was  money,  and  what  part 
other  estate  of  Wm.  S.  Bishop.  6th.  It  is  no  where  averred  that  any  sum 
of  money  or  other  estate  of  Wm.  S.  Bishop,  remained  in  the  hand  and 
possession  of  the  said  L.  Williams,  which  had  come  to  his  hands  as  guar- 
dian aforesaid,  after  deducting  such  reasonable  sum  as  the  Register  did 
allow  the  said  L.  Williams,  as  guardian  as  aforesaid,  for  his  care  and 
trouble  in  managing  the  estate.  7th.  For  that  there  is  error  in  this,  to 
wit :  That  the  court  below,  after  overruling  the  demurrer,  ordered  the  deft, 
to  join  issue,  instead  of  giving  judgment  against  him  on  the  demurrer. 

There  were  other  errors  assigned,  but  these  are  the  principal  ones,  and 
<?.mbrace  the  whole  matter  of  the  argument. 

/.  W.  Ruth,  for  plff.  in  error. 

There  is  no  sufficient  assignment  of  a  breach  of  the  condition  of  this- 
guardian  bond,  in  any  part  of  these  pleadings.  The  only  attempt  at  as- 
signing a  breach  is  in  the  conclusion  of  the  replication,  where  after  a 
jjeneral  denial  of  the  plea  of  performance,  the  plff.  below  specifies  the  re- 
ceipt of  $3,000  by  Williams  the  guardian,  which  he  says  Wallace,  the  ad- 
ministrator of  Wilds,  did  not  pay  over.  Is  this  a  breach  ?  If  it  be  not, 
^he  pleadings  are  fatally  defective. 

The  assignment  of  breaches  is  absolutely  necessary.  The  act  of  assem- 
bly declares,  that  judgment  shall  not  be  rendered  for  the  penalty  of  the 
bond,  but  for  damages  on  occasion  of  the  breaches  assigned.    Digest,  76. 


90  Bishop  is.  Wilds'  Adm'r. 

The  Act  of  1829,  (7  vol.  2G(>,)  provides  (sec.  3,)  that  no  action 
shall  be  brought  on  a  guardian  bond  after  three  years  from  the  deter- 
Wherever  a  party  pleads  performance,  the  replication  to  that  plea  must 
suggest  a  breach :  and  if  it  do  not  assign  a  breach,  or  assign  it  badly,  it  is 
had  on  demurrer  either  general  or  special.  1  Chitty,  P.  613-4;  Archh. 
261,  2;  Willes  R.12;l  Saund.  R.  103;  2  Taunt.  140-45;  2  New  R.  362- 
4;  5  Comyn,  352-3-4;  C.  47,  48,  49. 

It  is  not  averred  in  this  replication,  that  the  guardian  received  any  sum 
of  money  over  and  above  what  the  Register  had  allowed  him  for  care,  &c. ; 
nor  that  he  had  not  paid  all  over  and  above.  It  is  not  even  alledged  that 
he  did  not  pay  the  whole  sum  of  $3,000.  There  was  no  cause  of  action 
arising  to  Bishop,  from  the  fact  that  his  guardian  received  $3,000,  but  it 
is  from  the  fact  of  his  not  paying  over  such  part  of  that  sum  as  remained 
after  deducting  all  allowances  made  by  the  Register.  Yet  the  breach 
must  disclose  a  cause  of  action,  for  it  is  upon  this  that  the  jury  are  to  as- 
sess damages.  1  Salk.  138;  1  Show.  144;  Hoh.  198,  233.  Is  the  averment 
that  L.  Williams  received  $3,000,  which  Wallace,  the  administrator  of 
Wilds,  Williams'  surety,  had  not  paid  over,  a  breach  of  this  condition? 
In  no  part  of  the  replication  nor  of  the  record,  is  it  averred  that  L.  Wil- 
liams did  not  pay  over  the  money  received  by  him,  nor  even  that  John 
Wilds  in  his  lifetime,  did  not  pay  it.  The  guardian  was  only  bound  to 
pay  over  the  balance  of  such  sum  as  he  received,  after  deducting  allow- 
ances by  the  Register;  we  have  pleaded  that  he  did  pay  over  this  balance; 
the  replication  slips  over  this  matter,  and  avers  that  he  received  $3,000, 
which  we  have  not  paid;  and  it  is  a  rule  in  pleading,  that  where  a  ma- 
terial averment  is  not  traversed,  it  is  admitted.  1  Chitty,  667;  1  Salk. 
91 ;  19  Johns.  95 ;  3  Caines  C.  164.  It  might  well  be  according  to  the 
finding  of  the  jury  that  L.  Williams  received  $791  09,  of  the  estate  of  his 
ward;  but  did  he  receive  that  much  over  and  above  what  was  allowed  him 
by  the  Register ;  and  it  may  also  be  true  that  this  sum  was  not  paid  over 
by  Thos.  Wallace,  administrator  of  J.  Wilds,  but  does  this  exclude  the 
presumption  of  its  having  been  paid  by  L.  Williams  or  by  John  Wilds,  in 
his  lifetime,  and  this  against  a  plea  that  it  was  paid  by  Williams,  which 
is  not  even  denied  in  the  replication.  The  issue  presented  by  these  plead- 
ings was  an  immaterial  one;  and  the  damages  are  assessed  upon  this  is- 
sue.   6  Taunt.  386. 

There  being  no  sufficient  breach  assigned,  the  court  below,  ought  to 
have  rendered  judgment  on  the  demurrer,  that  the  plff.take  nothing  by  his 
writ;  and  we  ask  this  court  to  render  that  judgment.  Const.  Art.  7,Sec.2. 

The  conclusion  of  this  replication  is  wrong ;  it  ought  to  have  been  with 
a  verification,  giving  us  an  opportunity  to  answer  the  new  matter  al- 
ledged. 1  Chitty  P.  614;  1  Saund.  101,  102-3,  notes.  The  court  stopped 
Mr.  Ruth  on  this  jwint.  The  conclusion  is  undoubtedly  wrong,  but  it  is 
not  assigned  as  a  cause  of  error.  The  point  was  not  insisted  upon,  but  it 
was  said  that  the  conclusion  was  originally  with  a  verification,  and  it  was 
changed  after  the  demurrer  was  overruled,  and  the  deft,  ordered  to  join 
issue. 

HufjUngion,  for  deft,  in  error. 

If  a  breach  is  assigned  according  to  the  words  of  the  covenant,  it  is 
good.  If  a  breach  be  good  for  any  part  it  is  sufficient.  As  it  regards  the 
time  of  the  receipt  of  the  money  by  L.  Williams,  the  averment  that  it  was 
received  "  on  divers  days  and  times  "  is  sufficient.  Where  pleading  tends 
to  prolixity,  general  terms  are  allowed.     More  certainty  is  required  in 


Bishop  vs.  Wilds'  Admr.  91 

mination  or  ceasing  of  the  guardianship;  saving  (sec.  6,)  to  infants 
ihree  years  after  coming  to  full  age;  and  provided  also,  (sec.  10,) 
That  if  in  any  action  judgment  should  be  rendered  for  the  plff.  and 

rssigning  an  affirmative  breach  than  a  negative.  Lutw.  115;  2  Burr. 
772;  3  T.  Rep.  374;  5  B.  <&  Aid.  712;  8  T.  R.  459;  8  East,  80;  1  Bos. 
lie  Pul.  641 ;  1  Saund.  PI.  &  Evid.  162.    [134.]    3  Taunt.  423. 

It  is  contended  that  we  have  not  averred  that  this  money  was  received 
by  Williams,  during  the  minority  of  Bishop.  We  have  averred  that  it 
was  received  by  Williams  as  guardian,  which  could  only  be  during  the 
minority  of  the  ward.  After  that,  he  was  not  the  guardian.  The  allow- 
ance of  the  Eegister  for  care  and  trouble,  belongs  to  the  guardian,  and  is 
no  part  of  the  estate  of  the  ward.  We  have  averred  that  Williams  re- 
ceived $3,000  of  the  ward's  estate,  and  the  common  sense  meaning  of  the 
thing  is,  that  he  received  so  much  estate  due  the  ward,  that  which  was 
coming  to  him,  and  consequently,  over  and  above  all  allowances,  for  care 
and  trouble.  The  law  prohibits  the  Eegister  from  allowing  more  than 
the  income  of  the  ward's  estate  for  his  maintenance ;  it  is  absurd,  there- 
fore, to  suppose  that  the  whole  of  this  estate  was  sunk  by  such  allowance. 
The  case  of  Cornwallis  vs.  Savery,  2  Burr.  772,  is  like  this.  There  were 
deductions  as  here.  It  is  therefore  sufficiently  averred  that  this  money 
\va8  received  during  the  minority  of  Bishop,  and  that  it  was  over  and 
t-bove  the  allowances  made  by  the  Register;  and  it  is  expressly  alledged 
that  this  money  is  still  wholly  due  and  unpaid  to  the  ward.  Here  then 
ia  a  complete  breach. 

The  demurrer  only  goes  to  the  replication  and  is  sustained,  the  judg- 
ment would  only  have  been  that  we  should  reply  over;  and  not  that  we 
take  nothing  by  our  writ.  6  Taunt.  45;  13  Johns.  485;  9  do.  290;  Digest, 
27.  If  the  court  ought  to  have  awarded  a  repleader,  or  given  leave  to 
amend,  this  court  will  make  the  same  order. 

Where  the  court  consider  a  demurrer  frivolous,  they  will  overrule  it, 
and  order  the  party  to  join  issue.  The  consenting  to  join  issue  was  a 
waiver  of  the  demurrer.  They  might  have  refused  to  join  issue,  and  suf- 
fered judgment  to  go  upon  the  demurrer;  but  they  waived  it  and  went  to 
the  jury.  It  is  insufferable  to  let  a  deft,  take  his  chance  upon  the  issue, 
and  still  retain  his  objection  to  the  overruling  of  the  demurrer.  Saund. 
PI.  514 ;  1  Tidd,  405-6 ;  2  do.  826.  The  conduct  of  the  party  here,  there- 
fore, deprives  him  of  all  objections  which  are  aided  by  a  verdict ;  and  the 
iuformality  here,  if  any,  is  cured  by  the  verdict. 

H.  M.  Ridgely,  continues  for  deft,  in  error. 

We  don't  deny  that  it  was  necessary  for  us  to  alledge  a  breach  in  some 
part  of  the  pleadings;  in  the  replication,  as  they  have  pleaded  perform- 
ance; but  we  contend  that  we  have  assigned  a  sufficient  breach;  a  breach 
which  would  be  held  good  by  any  of  the  English  courts.  Reads  the  con- 
dition of  the  bond;  the  plea  of  performance.  This  plea  admits  and  sup- 
poses the  receipt  of  the  money,  the  passing  the  accounts,  ascertaining 
the  balance;  which  ialance  it  alledges  L.  Williams  paid  over.  The  repli- 
cation denies  this  payment  of  the  balance,  and  makes  a  complete  issue. 
If  the  pleading  had  stopped  here,  it  would  have  been  sufficient.  But  the 
replication  does  go  on  to  state  the  receipt  of  a  specific  sum  which  is  still 
wholly  unpaid  and  unsatisfied.    Here  is  a  perfect  breach. 

The  breach  should  be  assigned  in  the  words  of  the  contract  or  accord- 
iag  to  their  legal  effect.  And  it  was  not  necessary  to  state  particularly, 
the  time  of  the  receipt  of  the  money;  it  is  alledged  that  L.  Williams  re- 


92  Bishop  vs.  Wilus'  Adm'r. 

afterwards  reversed,  a  new  action  may  be  brought  upon  the  same 
cause  of  action  at  any  time  within  one  year  after  such  reversal.    "  This 

ceived  it  as  guardian  which  could  only  be  during  the  minority  of  Bishop. 
1  Chitty  PI.  326;  3  Burr.  1718;  Lutw. 

Did  the  court  err  in  ordering  the  deft,  to  join  issue  after  overruling  his 
demurrer?  It  is  the  uniform  practice  to  order  the  party  to  answer  over 
after  his  demurrer  fails.  And  where  the  plffs.  pleading  presents  the  issue 
he  may,  if  he  please,  add  the  common  similiter ;  which  the  deft,  is  at  lib- 
erty to  strike  out,  if  he  do  not  consent  to  it.  The  order  of  the  court  did 
no  more  here.  If  the  deft,  wished  the  full  advantage  of  his  demurrer  on 
appeal,  he  ought  to  have  refused  the  issue.  The  consent  to  go  to  trial  is  a 
waiver  of  all  objections  to  the  pleadings,  except  such  as  may  be  fatal  on 
special  demurrer,  after  verdict.  The  verdict  here  cures  all  the  defects, 
which  at  most,  are  merely  formal.  Willes  B.  10;  1  Sellon's  Pr.  388;  1 
H.  Blac.  254;  Imp.  Prac.  318;  Lord  Hardw.  67;  3  Burr.  1728;  Chitty  PI. 
331-2. 

If  the  court  should  be  of  opinion  that  there  is  error;  and  error  not 
cured  by  the  verdict ;  what  will  this  court  do  with  the  cause  ?  If  the  de- 
murrer had  been  decided  against  us  below,  the  court  would  have  permit- 
ted us  to  amend.    Won't  this  court  do  the  same? 

Bates,  in  reply,  for  plff.  in  error. 

There  is  nothing  in  the  pleadings  down  to  the  allegation  in  the  replica- 
tion of  the  receipt  of  $3,000,  which  bears  any  resemblance  to  a  breach.  It 
is  a  mere  general  denial  of  the  plea  of  performance ;  and  yet  the  counsel 
says  this  is  sufficient ;  here  is  an  issue,  an  affirmative  and  a  negative.  But 
an  issue  on  a  general  plea  of  performance  cannot  be  taken ;  it  tries  noth- 
ing; it  is  immaterial;  a  specific  breach  or  breaches  must  be  assigned  and 
issue  taken  thereupon.  It  is  the  want  of  this  breach  that  makes  the  plead- 
ings here  radically  defective  —  defective  on  general  as  well  as  on  special 
demurrer ;  as  well  after  verdict  as  before  verdict ;  for  the  pleadings  show 
no  cause  of  action.  The  only  attempt  at  a  breach  begins  with  the  word 
hut  in  the  replication.  The  receipt  of  estate  of  the  ward  amounting  to 
$3,000,  is  here  alledged,  a  receipt  by  L.  Williams,  the  guardian,  between 
the  date  of  the  guardian,  bond  and  the  commencement  of  this  suit,  which 
sum  to  wit,  the  $3,000:  the  replication  further  states,  Wallace,  the  ad- 
ministrator of  Wilds,  has  not  paid  over  to  Wm.  S.  Bishop  the  minor,  and 
the  same  is  still  wholly  unpaid  and  unsatisfied.  Is  this  a  breach  well  as- 
signed ?  If  it  be  not,  there  is  no  breach  in  these  pleadings.  Is  there  any 
thing  in  it  inconsistent  with  the  plea?  Wallace  pleads  that  Williams 
paid  over  the  balance  of  the  estate,  after  deducting  allowances.  The 
replication  states  that  Williams  received  $3,000,  which  Wallace  had  not 
paid  over.  Suppose  he  had  denied  that  Williams  paid  over  the  $3,000, 
still  the  breach  would  have  been  too  large,  for  he  was  not  bound  to  pay 
it  over,  but  only  a  balance  of  it  after  deducting  all  reasonable  allowances. 
A  breach  too  large  is  defective.  But  here  it  is  not  even  alledged  that 
Williams  did  not  pay  this  money;  nor  that  John  Wilds  did  not  pay  it. 
But  again.  The  time  of  the  receipt  of  this  money  by  the  guardian,  is  not 
sufficiently  specific.  Here  again,  the  breach  is  too  large.  The  money  was 
received  on  divers  days  and  times,  between  the  date  of  the  guardian 
bond,  and  the  commeneement  of  the  suit.  Now  the  replication  to  the 
plea  of  the  statute  in  this  case  alledges  that  the  suit  was  brought  within 
three  years  after  Bishop  came  of  age.  How  then  can  it  appear  that  the 
money  or  a  part  of  it,  was  not  received  within  the  period  which  elapsed 


Bi&j;op  vs.  Wilds'  Adm'r.  93 

proviso  however  shall  not  avail  if  the  first  action  at  the  time  of 
bringing  it,  were  barred  by  this  act." 

The  13th  or  repealing  section  of  the  act  of  1829  repeals  the  14th 
section  of  the  act  of  1766,  from  and  after  the  first  day  of  September 
1329,  except  so  far  as  shall  concern  any  action,  cause  of  action,  or 
matter  which  now  is  or  on  or  before  the  first  of  September,  shall  be 
barred  according  to  the  form  or  effect  of  said  section;  and  to  any 
action  or  proceeding  npon  any  such  bond,  which  action  or  proceed- 
ing now  is  or  on  or  before  the  first  day  of  September  shall  be  ac- 
cording to  the  form  and  effect  of  said  section  barred,  the  said  sectipn 
shall  remain  a  bar  and  may  be  pleaded  and  shall  avail  in  the  same 
manner  and  as  fully  and  effectually  as  if  this  act  had  not  been  passed. 

Bates,  in  support  of  demurrer. 

First.  The  statute  of  1829  does  not  apply  to  suits  previouslv 
brought  and  pending.  Plff.  was  above  twenty-four  when  that  act 
was  passed.  His  action  was  barred  by  the  old  l-^w  (1766,)  before 
t]ie  passing  of  this  act,  and  it  remains  barred  according  to  the  pro- 
viso of  the  13th  section.  This  act  could  not  be  pleaded  to  suits 
brought  before  it  passed;  its  exception  (sec.  10,)  cannot  go  further 
back  than  the  act  itself. 

Second.  The  construction  of  the  other  side  would  make  it  a  re- 
trospective law,  varying  the  rights  of  the  parties  and  unconstitu- 
tional. The  law  of  the  land  as  it  exists  enters  into  and  forms  a 
part  of  every  contract.     By  that  law  the  obligation  of  this  contract 

after  Bishop  came  of  age.  If  so  received,  undoubtedly  the  sureties  in  the 
guardian  bond  are  not  liable  for  it.  "  On  divers  days  and  times  "  may 
be  sufficiently  precise,  to  avoid  prolixity,  but  this  must  all  be  within  the 
time  when  the  sureties  were  liable;  and  it  must  so  appear. 

Second.  Our  obedience  to  the  order  of  the  court  cannot  prejudice  us 
here.  We  joined  issue  under  their  order,  as  we  were  bound  to  do.  As  to 
amendments,  it  is  not  usual  for  the  court  to  allow  them  after  a  demur- 
rer is  argued  and  the  opinion  of  the  court  known.    1  Tidd,  657. 

Clayton,  Chief  Justice  of  the  Common  Pleas,  delivered  the  opinion  of 
the  court  reversing  the  judgment  of  the  court  below  on  the  ground  that 
there  was  not,  in  the  replication  or  other  pleading,  or  by  way  of  sugges- 
tion on  the  record,  any  sufficient  assignment  of  a  breach  of  the  condition 
of  this  guardian  bond;  and  this  court  rendered  judgment  that  the  plff. 
below  take  nothing  by  his  writ ;  and  judgment  for  costs. 

The  plff.  must  assign  a  breach  in  some  part  of  his  pleading  or  suggest  it 
on  the  record,  and  the  breach  must  show  a  cause  of  action.  A  general  de- 
nial of  a  plea  of  performance  is  not  good.  The  breach  here  is  manifestly 
too  larfee  both  as  to  time,  and  the  amount  of  the  liability;  it  is  larger  than 
the  condition ;  and  it  is  defective,  because  it  is  not  alledged  with  sufficient 
certainty  that  the  money,  &c.,  received  by  Williams  the  guardian  was  not 
paid  over  by  him,  nor  by  John  Wilds,  the  deft's.  intestate,  in  his  lifetime. 
The  conclusion  of  the  replication  that  "  the  money  is  still  wholly  unpaid, 
&c."  must  in  legal  construction,  be  applied  to  the  previous  denial  of  its 
having  been  paid  by  Wallace,  the  administrator  of  Wilds.  The  replication 
ought  to  have  averred  the  receipt  by  L.  Williams,  on  divers  days  and  times 
between  the  date  of  the  bond,  and  the  time  when  the  minor  came  of  age,  of 
money  and  estate  of  the  ward,  amounting  to  a  certain  sum  over  and  above 
such  reasonable  sum  as  the  Register  had  allowed,  &e.,  and  then  expressly 
negatived  the  payment  of  this  balance,  by  Williams,  the  guardian, by  John 
Wilds  in  his  lifetime,  or  by  the  deft.,  his  administrator,  since  his  death. 


1)4  IJisiior  vs.  Wilds'  Adm'r, 

remained  in  force  for  three  years  after  the  plff.  came  of  age,  and  no 
longer.  If  not  sued  upon  within  that  time  there  is  a  perpetual  bar 
which  cannot  be  removed  by  a  subsequent  law.  4  Wheaton  122, 
Sturges  vs.  Crowning  shield  199,  20G-7,  209,  578;  12  do.  213,  259. 
The  same  law  as  to  remedies  as  rights.  12  Wheaton  262,  286-7, 
295.  No  law  is  good  which  takes  away  a  vested  right.  5  Halls  L. 
J.  502,  303,  317,  27.  The  act  of  1829  enlarges  and  extends  the 
responsibility  of  Wilds  under  his  contract,  which  no  legislature  has 
the  power  to  do.  1  Serg.  &  Rawle  236;  Cox  Digest  181;  3  Washing- 
tons  Rep.  313. 

Third.  On  this  demurrer  we  may  go  back  to  any  error  in  sub- 
stance. The  breach  in  the  narr  is  defective.  There  is  no  allega- 
tion that  the  administrator  of  Lewis  Williams  (the  guardian,)  did 
not  pay  the  balance  due;  the  only  allegation  is  that  Lewis  Williams 
did  not  pay,  and  that  it  remains  due.  Cites  5  Com.  Dig.  352,  c. 
47-8 ;  1  Chitty  328-9 ;  6  Johns.  105 ;  1  Lord  Raymond  284 ;  4  Hen. 
&  Mumf.  277. 

Huffington  and  Ridgely,  for  plff. 

The  act  of  1829  repeals  all  limitation  laws.  Cases  not  then  bar- 
rod  are  regulated  by  that  act.  Unless  j'ou  give  it  a  retrospective 
effect  as  to  such  cases  they  can  never  be  barred.  Not  being  barred 
by  the  acts  repealed  when  the  repeal  took  place,  they  must  be  held 
within  the  retrospective  operation  of  the  act  of  1829,  or  there  is  no 
act  of  limitation  which  can  apply  to  them. 

A  retrospective  law  that  goes  to  the  remedy  and  not  to  the  right 
is  good.  3  Dallas  386,  396.  A  law  cannot  be  passed  to  impair  a 
contract,  but  it  may  to  enlarge  a  remedy.  The  cases  cited  by  Mr. 
Bates  refer  to  impairing  the  rights  of  the  creditor  to  sue ;  limiting 
his  remedy  to  a  shorter  time.  This  act  impairs  no  right;  it  lessens 
no  remedy  but  enlarges  this  without  affecting  the  right.  You  can- 
not lessen  the  limitation,  for  that  would  impair  the  contract ;  but  you 
may  enlarge  the  remedy.  Acts  of  limitation  are  passed  for  the  ge- 
neral good;  they  fix  limits  to  remedies  with  a  view  to  prevent  stale 
demands;  but  they  do  not  impair  the  rights  or  affect  the  obligation 
of  the  contract.  4  Wheaton  206-7;  1  Kent  Com.  413  to  420;  2 
Peters  380,  413. 

Third.  If  there  were  any  defect  in  the  breach  it  should  have  been 
specially  alledged;  it  cannot  be  urged  on  general  demurrer.  The 
narr  however  is  good  and  the  breach  sufficient.  If  there  be  any  de- 
fect it  is  in  the  plea  of  performance,  which  is  too  general.  It  should 
set  out  specially  the  acts  of  performance.    2  Johns.  413. 

Clayton  for  deft.  2  Johns,  don't  apply  to  this  case  for  the  de- 
murrer only  opens  those  parts  of  the  pleadings  that  refer  to  limitation. 

A  repleader  is  never  awarded  except  against  the  party  who  makes  the  bad 
plea.  Never  after  demurrer,  except  on  a  demurrer  to  a  plea  in  abatement. 

The  judgment  of  the  court  below,  ought  to  have  been  against  the  plff., 
that  he  take  nothing  by  his  writ;  but  according  to  their  own  decision 
they  should  have  given  judgment  on  the  demurrer  against  the  demur- 
rant.   Their  not  doing  so,  and  ordering  the  party  to  join  issue  was  error. 

Judgment  reversed. 

Ruth  and  Bates,  for  plff.  in  error. 

Huffington  and  Ridgely,  for  deft,  error. 


Bishop  vs.  Wilds'  Adm'r.  95 

The  general  object  of  this  statute  was  to  reduce  the  period  of  limi- 
tation. (Journal  of  Senate  of  1829,  page  18,  Judge  Hall's  re- 
marks.) The  construction  of  the  other  side  violates  this  object; 
for  it  would  increase  the  surety's  liability  as  to  time.  The  plff.  had 
110  time  by  the  old  law  in  which  to  bring  a  new  suit  after  reversal. 
I'he  proviso  {sec.  10,)  is  in  a  subsequent  law  and  cannot  apply  to 
T:ie  case.  Under  the  old  law,  the  deft,  had  a  right  to  protect  him- 
siilf  from  all  suits  brought  on  this  bond  after  Bishop  was  twenty-four 
years  old,  by  a  plea  of  the  statute.  Right  and  obligation  are  corre- 
lative terms.  It  was  an  obligation  of  the  plff.  to  sue  within  that  time. 
C  ould  the  legislature  repeal  all  limitation  acts  and  leave  all  past  cases 
without  bar?  No  more  can  they  enlarge  the  time  for  one  year  as  to 
past  contracts,  it  equally  impairs  the  obligation  of  the  contract.  The 
obligation  of  the  contract  is  something  more  than  the  contract  itself; 
ii;  comprises  the  law  as  existing  at  the  time,  and  which  relates  to  the 
enforcing  the  contract;  to  impair  this  law  is  to  impair  the  obligation. 
I'rospective  limitation  laws  do  not  do  this.    12  Wheat.  326,  379. 

Cur.  adv.  vult. 

Mr.  Justice  Black  delivered  the  opinion  of  the  court. 

Black,  J. —  "  In  August,  1808,  Lewis  Williams  was  appointed  by 
tie  Orphans'  Court  of  Kent  county  guardian  of  William  S.  Bishop, 
the  plff.  in  this  action.  He  gave  bond  in  the  sum  of  $3000,  with  the 
usual  condition,  in  which  John  Wilds,  Maskline  tlark  and  James 
Spear  were  his  sureties. 

This  action  is  to  recover  from  the  administrator  of  John  Wilds  the 
balance  due  from  Lewis  Williams  the  guardian,  which  the  guardian 
owed  at  his  death  to  his  ward.  There  is  no  controversy  as  to  the 
amount  of  that  balance,  the  parties  having  agreed  upon  the  sum  for 
^\hich  judgment  shall  be  entered,  provided  the  court  should  be  with 
t'le  plff.  on  the  questions  of  law  presented  for  their  decision. 

The  plff.  attained  the  age  of  twenty-one  on  the  29th  day  of  August, 
1824.  On  the  8th  day  of  August,  1827,  he  instituted  an  action  against 
tie  above  deft,  on  the  above  guardian  bond,  in  the  Supreme  Court  for 
Kent  coimty,  which  was  within  three  years  after  his  coming  of  age. 
I[e  obtained  judgment  in  this  action  at  the  March  Term,  1830,  which 
jadgment  was  reversed  by  the  late  High  Court  of  Errors  and  Appeals, 
on  a  writ  of  error  at  the  Jung  Term.  1831.  The  present  action  was 
brought  on  the day  of  July,  1831,  and  is  upon  the  same  guar- 
dian bond  upon  which  the  former  suit  was  instituted. 

The  pleadings  are  drawn  out  at  length  and  are  brought  to  a  close  by 
a  demurrer  on  the  part  of  the  deft.,  to  the  surreioinder  of  the  nlff..  in 
which  demurrer  there  is  a  joinder  by  the  plff.  The  great  and  leading 
<5uestion  to  be  decided  by  the  court  is  whether  the  plff's.  action  on  this 
guardian  bond  is  barred  by  any  statute  of  limitation  of  this  state. 

It  is  contended  on  the  part  of  the  deft.,  that  inasmuch  as  the  pre- 
S'lnt  action  was  not  brought  within  three  years  after  the  plff.  cf^me  of 
aee,  he  is  barred  by  the  l4th  section  of  the  act  of  1766,  (1  Bel.  L. 
424.')  To  this  the  plff.  answers  that  he  did  commence  an  action  on 
tliis  bond  within  three  years  after  he  attained  twenty-one,  which  action 
was  pending  in  the  Sunreme  Court  on  the  29th  of  January,  1829, 
vhen  the  present  act  of  limitation  passed ;  that  in  the  latter  action  he 
obtained  a  judgment  in  March,  1830.  which  judorment  upon  a  writ  of 
«?ror  was  reversed  by  the  late  High  Court  of  Errors  and  Appeals  in 


96  Bishop  vs.  Wilds'  Adm'e. 

June,  1831;  and  that  the  present  action  was  brought  upon  the  same 
bond  within  a  year  after  that  reversal,  and  that  according  to  the  pro- 
vision of  the  loth  section  of  the  act  of  1829,  his  present  action  is  not 
barred.  The  deft,  in  reply  to  this  contends  first,  that  the  act  of  1829, 
(7  Del.  Laws,  267,)  and  more  particularly  the  10th  section  of  it,  does 
not  apply  to  suits  brought  prior  to  its  passage ;  and  secondly,  that  that 
act  cannot  apply  to,  or  operate  upon,  guardian  bonds  executed  before 
it  was  passed,  because  it  gives  a  right  to  renew  actions  on  such  bonds, 
which  did  not  exist  under  our  laws  when  these  bonds  were  given,  and 
that  the  granting  such  a  right  in  relation  to  such  bonds  then  and  ante- 
cedently in  existence  would  conflict  with  that  part  of  the  10th  section 
of  the  1st  article  of  the  constitution  of  the  United  States,  which  re- 
stricts the  states  from  passing  any  law  impairing  the  obligation  of 
contracts. 

These  are  substantially  the  positions  presented  for  consideration. 

The  14th  section  of  the  act  of  1766,  provides  "  That  all  actions  upon 
administration  or  guardian  bonds  hereafter  executed,  shall  be  com- 
menced within  six  years  after  the  passing  the  said  bonds,  and  all  ac- 
tions to  be  commenced  on  any  such  bonds  already  given,  shall  be 
brought  within  six  years  after  the  publication  of  this  act,  and  not 
after,""  saving  the  right  of  those  who  may  be  under  twenty-one  years 
of  age,  femes  covert,  &c.,  &c.,  of  bringing  their  actions  within  three 
years  after  the  disability  is  removed. 

The  act  of  1829,  provides  "  That  no  action  shall  be  brought  upon 
any  guardian  bond  either  against  the  principal  or  sureties,  after  the 
expiration  of  three  years  from  the  determination  or  ceasing  of  the 
guardianship."  A  saving  of  three  years  to  infants  and  some  others,  is 
also  provided  by  this  act,  after  the  removal  of  the  disability.  This  act 
is  by  its  terms  extended  to  all  the  causes  of  action  enumerated  in  it, 
"  as  well  those  that  have  been  taken,  executed,  or  settled  heretofore,  as 
those  that  shall  be  taken,  executed,  or  settled  hereafter." 

The  13th  or  repealing  section  of  the  act  of  1829,  declares  that  the 
14th  section  of  the  act  of  1766,  together  with  various  other  sections 
and  acts  shall  be  and  are  thereby  repealed  from  and  after  the  first  day 
of  September,  1829,  "  except  so  far  as  shall  concern  any  action,  cause 
of  action  or  matter  which  now  is  or  on  or  before  the  first  day  of  Sep- 
tember next,  shall  be  barred  according  to  the  form  or  effect  of  the 
aforesaid  act  or  sections,  or  either  of  them;  and  to  any  action  or  pro- 
ceeding upon  any  recognizance,  bond,  cause  of  action,  account  or  mat- 
ter, which  action  or  proceeding  now  is  or  on  or  before  the  first  day  of 
September  next,  shall  be  according  to  the  form  and  effect  of  said  acts 
or  sections,  or  either  of  them  barred,  shall  remain  a  bar  and  mav  be 
pleaded,  and  shall  avail  in  the  same  manner  and  as  fully  and  effect- 
uallv  as  if  this  act  had  not  been  passed." 

This  question  then  arises  on  a  consideration  of  the  foregoing  sec- 
tions. "Was  the  Action  or  riffht  of  action  of  William  S.  Bishop  on  this 
bond  barred  on  September  1st.  1829.  "accordinsr  to  the  form  and  ef- 
fect "  of  the  14th  section  of  the  act  of  1766  ?  If  it  was,  that  act  avails 
and  must  continue  a  bar. 

The  plff.  attained  the  age  of  fwentv-one  on  the  29th  dav  of  Ancmst, 
1824.  On  the  8th  dav  of  August,  1827,  (in  less  than  three  vears  after 
he  came  of  age.)  he  brought  an  action  on  this  bond  against  the  pres'^nt 
defendant  in  the  Supreme  Court.    On  the  29th  day  of  January,  1829, 


Bishop  vs.  \Vilds'  Adm'u.  97 

tJie  day  on  which  our  present  act  of  limitation  was  passed,  and  also  on 
tne  first  day  of  September,  in  the  same  year  when  the  repealing  clause 
in  it  took  effect,  that  action  was  pending  in  the  Supreme  Court,  and 
undecided.     On  the  8th  day  of  August,  1827,  the  day  on  which  the 
writ  was  issued,  the  plff's.  action  on  this  bond  was  not  barred,  as  three 
3  ears  had  not  elapsed  after  his  attaining  age,  and  as  that  suit  re- 
ijiained  in  the  Supreme  Court  undecided  on  September  1,  1829,  the 
jlff^s.  action  or  cause  of  action  was  not  barred  on  that  day.     His  ac- 
tion had  been  commenced  within  three  years,  and  according  to  the 
'■  form  and  effect"  of  the  act  of  1760,  was  not  barred.    It  was  still  in 
court  undecided  on  the  1st  of  September,  1829.    Then  if  his  action  or 
(ause  of  action  was  not  barred  on  that  day,  the  14th  section  of  the  act 
C'f  1766  is  no  bar  to  this  action,  inasmuch  as  that  section  stands  re- 
jiealed  by  the  act  of  1829,  except  so  far  as  concerns  any  action  or  cause 
(■f  action  wliich  by  the  form  and  effect  of  that  section  was  barred  on 
the  first  day  of  September,  1829.     To  such  actions  and  causes  of  ac- 
tion and  to  such  only,  can  the  14th  section  of  the  act  of  1766  be  held  a 
l»ar.    Its  principle  of  operation  or  existence  is  retained  for  those  cases 
ilone,  in  relation  to  which  it  was  a  bar  on  the  1st  of  September,  1829. 
As  to  all  other  cases  it  is  extinct.    If  then  you  show  that  by  that  sec- 
lion  the  plff's.  action  or  cause  of  action  was  not  barred,  when  that  sec- 
lion  was  to  stand  repealed,  then  by  the  express  terms  of  the  repealing 
section  in  the  act  of  1829,  the  14th  section  of  the  act  of  1766  was  as  to 
such  a  case  repealed,  and  could  no  longer  operate  upon  it.    The  plead- 
ngs  in  this  case  show,  and  the  fact  is  not  controverted,  that  on  the  1st 
day  of  September,  1829,  an  action  was  pending  in  the  Supreme  Court 
between  these  same  parties  on  this  very  guardian  bond,  which  was  not 
ihen  barred  by  the  14th  section  of  the  act  of  1766,  because  that  action 
had  been  brought  within  the  time  limited  in  the  saving  in  that  sec- 
tion. 

The  action  therefore,  of  the  plff.  on  this  bond  not  having  been  bar- 
red on  September  1,  1829,  is  not  within  the  exception  in  the  repealing 
clause  of  the  act  of  1829,  and  the  14th  section  of  the  act  of  1766,  as 
"0  his  action  or  right  of  action  is  entirely  repealed,  and  can  no  longer 
operate  or  apply  to  this  bond. 

The  next  question  to  be  considered  is  whether  the  act  of  1829,  or 
-he  10th  section  of  that  act  can  be  applied  to  actions  pending  in  court 
when  that  act  was  passed. 

If  such  actions  or  causes  of  action  were  barred  on  the  1st  of 
September,  1829,  and  they  are  to  be  held  as  not  within  the  act  of 
1829,  because  actions  were  pending  when  that  act  passed,  then  it 
would  follow  that  to  such  actions  or  causes  of  action,  there  is  no  limi- 
ration  by  our  statute.  If  they  were  not  barred  on  September  1, 
1829,  according  to  the  provisions  of  the  limitation  acts  which  were 
on  that  day  to  stand  repealed,  and  are  not  within  the  act  of  1829 
which  on  that  day  was  to  go  into  full  operation,  and  are  not  within 
'he  exception  contained  in  the  repealing  clause  of  that  act,  where 
]S  there  any  act  of  limitation  to  bear  upon  them,  or  that  can  now  be 
used  as  a  bar  to  actions  that  were  pending  on  29th  January,  1829, 
which  were  not  barred  on  1st  September,  1829,  and  which  may  be 
again  in  consequence  of  a  non  pros,  discontinuance  or  otherwise, 
brought  by  a  renewed  suit  before  this  court.  Is  there  any  thing  in 
the  act  of  1829  which  expresslv  excludes  pending  actions  from  the 

"  13 


98  Bishop  vs.  Wilds'  Adm'r. 

operation  of  this  10th  section?  If  there  is  not,  then  upon  what  prin- 
ciple or  for  what  sufficient  reason  shoukl  they  be  excluded? 

The  design  of  our  acts  of  limitation  is  to  close  our  courts  against 
those  who  sleep  on  their  rights,  and  neglect  to  prosecute  them  in  a 
reasonable  time;  this  neglect  is  to  be  taken  as  evidence  of  the  debt 
being  paid  or  released.  If,  however,  the  part}'  does  not  allow  his 
claim  to  sleep,  but  prosecutes  it  within  tho  time  prescribed,  this  ])re- 
sumption  does  not  arise;  he  may  fail  in  his  suit,  but  his  conduct  has 
rebutted  the  legal  presumption.  The  general  design  of  the  legisla- 
ture in  enacting  the  10th  section  of  the  act  of  1829,  was  to  protect 
the  rights  of  all  those  who  had  prosecuted  their  actions  within  the 
time  limited  for  bringing  such  actions,  and  upon  a  reversal  of  a  judg- 
ment in  any  action,  to  give  the  patty  a  right  to  renew  it  within  a 
year  from  such  reversal.  The  words  are  general  and  without  excep- 
tion, where  the  first  action  was  not  barred  by  that  act  at  the  time  of 
bringing  it.  We  think  the  present  case  is  within  the  letter  of  the 
statute;  but  if  we  should  be  mistaken  in  this,  it  is  clearly  within  its 
spirit  and  equity. 

Suppose  on  January  1,  1828,  A.  to  have  made  a  sale  of  goods  to  B. 
on  the  same  day  he  also  makes  a  sale  of  goods  to  C.  On  the  1st  of 
January  1829,  he  brings  suit  for  the  price  of  the  goods  against  B.,  and 
on  the  1st  of  February  or  2nd  September,  1829,  he  brings  suit 
against  C.  for  the  value  of  the  goods  sold  him.  Ill  each  case  he  ob- 
tains a  judgment,  which  judgments  are  reversed  in  1831.  Three 
years  have  elapsed.  According  to  the  argument  he  may  renew  his 
action  against  C.  because  no  suit  was  pending,  when  the  act  of  1829 
was  passed,  but  not  against  B. ;  because  a  suit  was  then  pending.  One 
claim  stands  barred  and  the  other  is  free  from  all  bar,  although  both 
accounts  accrued  on  the  same  day.  Where  is  the  reason  for  such  a 
distinction.  If  the  law  however,  creates  it,  the  court  must  yield  to 
it,  but  the  rule  must  appear  to  be  clearly  fixed  to  lead  us  to  give  ef- 
fect to  it,  when  we  cannot  perceive  any  good  reason  for  the  rule. 

It  will  be  observed  that  there  are  in  the  act  no  words  expressly 
excluding  from  the  operation  of  the  10th  section,  pending  actions. 
Their  exclusion  is  a  matter  of  argument  from  some  of  the  provisions 
of  the  law.  By  comparing  this  act  with  former  acts  relating  to  the 
same  matter,  it  is  believed  that  aid  as  to  its  true  construction  may  be 
obtained. 

By  comparing  the  10th  section  of  the  act  of  1829,  with  the  British 
statute  of  limitation  pass-^d  in  thf  twenty-first  vear  of  the  reign  of 
James  the  first,  chapter  16,  and  with  our  act  of  limitation  passed  in 
1742,  in  the  fifteenth  year  of  George  second,  (1  Del.  Laws  229,)  it 
will  be  perceived  that  in  the  act  of  1829,  there  is  a  change  of  phra- 
seology, from  what  had  been  used  in  the  acts  referred  to,  touching 
the  same  subject  matter,  which  it  cannot  be  believed  was  accidental 
or  undersigned,  as  but  little  if  any  doubt  can  be  entertained  that  our 
statute,  and  also  the  British,  must  have  been  before  the  drafter  of 
this  10th  section;  or  in  fact,  that  that  section  was  prepared  from  those 
two  statutes. 

The  3rd  section  of  the  statute  of  James  provides,  that  all  actions 
of  trespass,  replevin,  detinue,  of  account  and  upon  the  case,  &c.,  &c., 
which  shall  be  sued  or  brought  at  any  time  after  the  end  of  this  pre- 


Bishop  vs.  Wilds'  Adm'k.  99 

.^ent  session  of  Parliament,  shall  be  sued  within  years,   &c., 

cic.  The  4th  section  provides  for  the  renewal  of  the  suit  in  the 
tvent  of  reversal  or  arrest  of  Judgment,  as  was  the  design  of  the  10th 
t-eetion  of  our  act  of  1829.  Its  language  is — if  in  any  of  the  said  ac- 
lions  or  suits  judgment  be  given  for  the  plff.,  and  the  same  be  re- 
versed by  error,  &c.  &c.,  the  plff.  may  commence  a  new  action 
^^•ithin  a  year.  The  right  of  renewing  was  thus  confined  to  the  said 
jictions;  to  those  actions  enumerated  and  designated  in  the  preceed- 
ing  section,  which  were  those  actions  which  should  be  brought  after 
ihe  end  of  the  session  of  that  Parliament  which  enacted  the  law. 
Pending  actions  were  therefore  clearly  excluded  by  the  terms  of 
ihe  statute  of  James  from  this  privilege  of  renewing  within  a  year 
after  reversal.  It  may  not  be  amiss  to  remark,  that  this  section  has 
in  England  received  not  a  rigid  or  merely  literal  construction,  but  a 
liberal  one;  and  that  cases  not  within  the  words  of  the  section,  (as 
ihe  termination  of  a  suit  by  death  or  marriage,)  have  by  an  equita- 
1)le  construction  of  that  section  been  held  within  it.  The  inclina- 
tion of  the  courts  in  England  has  not  been  to  circumscribe  the  ope- 
ration of  this  section,  but  rather  to  enlarge  its  limits  and  to-  embrace 
"Aithin  it  those  cases  which  equitably  ought  to  be  covered  by  it. 

Should  this  court,  in  giving  a  construction  for  the  first  time  to  a 
section  similar  in  its  design,  be  inclined  to  adapt  one  less  equitable 
and  liberal  than  has  been  adopted  in  England  unless  they  are  plainly 
lequired  by  the  law  in  question  so  to  do? 

In  our  own  statute  passed  in  1742  (1  D.  L.  229,)  a  feature  similar 
:o  that  in  the  statute  of  James  is  to  be  found. 

The  2nd  section  provides  that  all  actions  of  trespass,  replevin,  on 
the  case,  &c.  &c.  "  which  shall  be  sued  at  any  time  after  the  publi- 
cation of  that  act,  shall  be  commenced  within  it,  &c." 

Section  3rd  which  follows,  provides  "  that  if  in  an}'^  of  the  said 
iictions  or  suits  judgment  be  given  for  the  plff.,  and  the  same  be  re- 
versed by  error,  &c."  "  That  in  all  such  cases  the  plff.  may  com- 
•nence  a  new  action  within  a  year.'' 

This  act  did  not  give  the  right  of  renewal  within  a  year  after  re- 
versal to  actions  pending  at  its  passage,  but  confined  this  privilege  to 
the  said  actions — that  is,  causes  of  action  which  should  be  sued 
ifter  the  publication  of  that  act,  and  necessarily  excluded  all  brought 
prior  thereto. 

Had  the  legislature  of  1829  intended  to  have  confined  the  10th 
section  of  the  act  of  limitation  passed  by  them,  to  actions  futurely 
to  be  brought,  why  not  retain  the  phraseology  of  the  act  of  James  or 
that  of  our  own  statute  of  1742.  Can  we  suppose  otherwise,  than 
that  they  designed  to  vary  the  provision  when  they  have  in  a  very 
material  point  changed  the  phraseology  ?  They  do  not  use  the  words 
''if  in  any  action  to  be  brought  after  the  publication  of  this  act;" 
aor  "if  in  any  action  hereafter  to  be  brought;"  nor  "if  in  any  of 
the  said  actions  "  judgment  be  rendered  for  the  plff.  and  the  same  be 
reversed  for  error,  &c.,  thus  confining  the  section,  to  actions  "  to  be 
brought "  according  to  the  language  of  the  sections  preceding,  but 
they  use  these  comprehensive  words  "that  if  in  any  action,  judg- 
ment shall  be  rendered  for  the  plff.  and  the  said  judgment  be  after- 
waids  reversed,  &c.,  a  new  action  may  be  brought  upon  the  same 


m 


100  Bishop  vs.  Wilds'  Adm'r, 

cause  of  action  at  any  time  within  a  3ear  after  said  reversal.*^  Had 
it  been  their  intention  to  confine  this  provision  to  suits  thereafter  to 
be  brought  and  to  exclude  pending  actions,  why  abandon  those  guards 
in  language  which  had  been  used  in  previous  acts  to  effect  this  very 
object.  When  we  find  them  using  the  words  "if  in  any  action 
judgment  be  rendered,"  are  we  to  infer  that  they  meant  to  say  "  if 
in  any  action  hereafter  to  be  brought "  judgment  be  rendered,  and 
thi«  too  when  we  find  that  they  cautiously  abstain  from  using  those 
words,  which  had  been  used  in  the  section  they  were  repealing,  and 
which  words  excluded  from  the  operation  of  a  similar  section,  pon- 
ding actions.  Such  an  inference  in  our  judgment  would  be  directly 
contrary  to  that  which  ought  under  these  circuinstances  to  be  drawn. 

It  has  been  urged  with  much  earnestness  by  one  of  the  counsel  for 
the  deft.,  that  the  act  of  1829  cannot  be  pleaded  to  actions  brought 
before  it  passed,  and  that  the  words  of  the  proviso  at  the  close  of  the 
1 0th  section,  that  "  this  proviso  shall  not  avail  if  the  first  action  at 
the  time  of  bringing  it  were  barred  by  this  act;  but  if  this  act  were 
pleaded  in  the  first  action  and  verdict  thereupon  found  for  the  plff., 
such  verdict  shall  be  conclusive  evidence  that  the  first  action  was  not 
at  the  time  of  bringing  it  barred  by  this  act''  show  that  future  ac- 
tions alone  were  intended  to  be  embraced  by  this  section. 

In  considering  this  section  the  repealing  section  must  be  lost  sight 
of.  Suits  that  were  pending  on  29th  January  1829,  if  barred  at  all 
were  barred  by  acts  passed  antecedent  thereto,  and  those  acts  by  the 
terms  of  the  repealing  clause,  wore  continued  as  a  bar  and  were 
pleadable  as  such.  To  all  actions  not  barred  on  the  1st  of  Septem- 
ber 1829,  the  act  of  1829  is  the  only  one  that  can  be  pleaded.  True 
it  cannot  avail  fer  se  as  a  bar  to  actions  pending  at  its  passage ;  but 
for  this  reason.  They  were  not  barred  by  the  previously  existing 
acts  which  were  then  repealed.  If  they  had  been  thus  barred,  such 
acts  were  continued  a  bar;  the  act  of  1829  did  not  create  but  conti- 
nued this  bar  and  made  it  perpetual,  might  it  not  then  be  argued 
with  plausibility,  that  such  actions  were  barred  by  the  act  of  1829, 
because  that  act  continued  that  bar  which  had  been  fixed  by  antece- 
dent acts. 

The  repealing  clause  makes  perpetual  the  bar  which  existed  ac- 
cording to  the  old  acts  on  September  1st  1829.  In  relation  to  such 
demands  therefore  as  were  then  barred,  there  could  be  no  renewed 
actions,  for  that  clause  declared  them  forever  debarred  of  a  right  of 
suit.  A  renewed  action  is  therefore  necessarily  forbidden  by  this 
section  as  to  all  claims  barred  on  September  1st  1829.  The  proviso 
in  the  10th  section  then  proceeds  to  exclude  from  a  new  action  (not 
those  cases  which  were  barred  by  the  former  acts,  as  they  were  in 
fact  excluded  by  the  13th  section, "j  but  those  cases  which  were  not 
barred  on  1st  September  1829,  and  which  could  alone  he  barred  by 
the  act  of  1829;  and  to  prescribe  what  should  be  a  conclusive  rule  of 
evidence,  that  the  first  action  was  not  barred.  This  rule  is  confined 
to  those  actions  which  were  not  barred  on  1st  of  September  1829,  and 
is  to  govern  in  all  such  cases.  But  no  rule  is  prescril^d  as  to  what 
shall  be  evidence  of  a  bar  under  the  old  acts  on  or  prior  to  the  1st  of 
September  1829.  That  is  left  to  depend  upon  the  terms  of  the  old 
limitation  acts  and  the  proof  in  the  particular  case. 


Bishop  vs.  Wilds'  Admk.  101 

The  language  in  the  latter  part  of  the  proviso  that  the  riorht  given 
^'  shall  not  avail  if  the  first  action  at  the  time  of  bringing  it  were  bar- 
red by  that  act,"  cannot  according  to  our  judgment  be  held  as  exclu- 
ding from  the  operation  of  the  10th  section  pending  actions,  when 
vou  consider  the  comprehensive  language  used  in  it  as  contrasted 
with  the  guarded  phraseologv  of  the  statute  of  James,  and  the  act  of 
1742. 

This  proviso  became  necessary  to  guard  against  certain  actions  or 
causes  of  action  standing  revived  by  the  language  used  in  the  first 
part  of  the  section,  which  were  in  fact  Ijarred  by  that  act.  One  pro- 
vision of  that  section  is  that  "  if  the  pllf.  or  deft,  die  after  writ  sued 
and  before  the  deft's.  appearance,  a  new  action  may  be  brought  at 
any  time  within  a  year  after  such  death."  Xow  if  an  action  had 
been  brought  on  an  account  of  more  than  three  years'  standing,  and 
the  plff.  and  deft,  died  after  writ  sued  and  before  appearance,  a  new 
action  might  be  brought  within  the  year,  although  by  the  5th  section 
the  action  was  barred.  To  prevent  such  a  conclusion,  or  the  right 
to  sue  where  the  action  was  barred  by  other  parts  of  that  act — would 
seem  to  have  been  the  design,  in  saying  that  such  right  to  a  new  action 
should  not  exist  if  the  claim  was  barred  bv  that  act.  If  that  act  bar- 
red the  claim  a  right  to  renew  the  action  was  not  given  by  the  10th 
section.  If  the  former  acts  barred  the  claim,  the  bar  was  perpetua- 
ted in  the  repealing  clause,  and  by  that  clause  those  acts  could  al- 
ways be  pleaded  to  an  original  or  renewed  action. 

The  plff.'s  first  action  was  brought  in  1827  within  three  years 
after  he  came  of  age.  It  remained  in  court  on  the  1st  September 
1829.  He  afterwards  obtained  judgment  in  that  action — that  judg- 
ment was  reversed  by  the  late  High  Court  of  Errors  and  Appeals  in 
1831,  and  the  present  suit  instituted  on  the  same  cause  of  action  in 
less  than  a  year  after  that  reversal.  The  plff.'s  cause  of  action  was 
not  barred  on  September  1st  1829,  according  to  the  14th  section  of 
the  act  of  1766,  a  suit  having  been  brought  in  time  and  then  pending; 
as  to  his  claim  then  the  14th  section  of  the  act  of  1766  is  repealed. 
It  is  not  barred  by  the  act  of  1829 — the  10th  section  of  which  in 
our  judgment  embraces  all  actions,  as  well  those  then  pending  as 
those  thereafter  to  be  brought — because  his  action  was  renewed  within 
the  time,  and  on  one  of  the  events  provided  for  in  that  section ;  he  is 
therefore  entitled  to  judgment  for  his  debt  unless  the  act  of  1829  does 
as  is  contended  for  by  the  deft.,  violate  that  part  of  the  10th  section 
of  the  first  article  of  the  constitution  of  the  U.  States,  which  restricts 
the  several  states  from  passing  "any  law  impairing  the  obligation 
of  contracts." 

When  the  guardian  bond  on  which  this  suit  is  founded  was  exe- 
cuted, suits  upon  such  bonds  were  by  the  then  laws  of  this  state 
limited  to  six  years  after  the  passing  of  the  bonds,  with  a  saving  of 
three  years  after  they  came  of  age  to  those  under  age. 

The  3rd  section  of  the  act  of  1742  heretofore  referred  to,  giving  a 
right  to  renew  the  action  in  certain  c!is'"«  did  not  emhrace  guardian 
bonds.  In  relation  to  such  bonds  therefore,  there  did  not  exist  anv 
provision  for  renewing  an  action  upon  it  within  a  vear  after  reversal 
or  arrest  of  judgra^pnt,  as  was  provided  in  the  10th  section  of  the  act 
of  1829,  and  whioh  section  clearly  embraced  guardian  bonds.     This 


302  Bishop  vs.  Wilds'  Adm'r. 

right  thus  granted  to  renew  the  action  within  the  year  it  is  contended, 
is  a  violation  of  the  obligation  of  the  contract  made  by  John  Wilds 
with  the  plff.,  because  the  laws  existing  when  he  entered  into  the  bond, 
did  not  give  such  a  right. 

On  an  examination  of  the  various  acts  of  limitation  that  have  been 
from  time  to  time  passed  by  the  legislature  of  this  state,  it  does  not 
appear  to  have  been  their  impression  that  such  laws  were  to  operate 
only  on  those  contracts  that  should  thereafter  be  entered  into — nor 
that  an  elargement  or  diminution  of  the  time  for  bringing  actions, 
would  in  relation  to  matters  of  contract  or  rights  of  action  existing 
when  such  laws  were  passed,  be  a  violation  of  this  clause  of  the  con- 
stitution of  the  U.  States.  An  opinion  directly  the  reverse  seems 
to  have  been  held. 

Nor  are  we  aware  of  any  decision  that  would  show  that  such  a 
principle  has  been  recognized  by  the  courts  of  this  state.  These 
points  are  mentioned  only  as  evidence  that  such  has  not  been  the 
view  taken  by  the  legislature,  courts  and  bar  of  this  state,  as  to  the 
validity  of  such  laws. 

The  counsel  for  the  deft,  have  referred  to  the  case  of  Sturges  vs. 
Crowning  shield,  4  Wheaton  122,  and  to  the  case  of  Ogden  vs. 
Saunders,  12  Wheaton  213,  to  show  the  opinions  held  by  the 
judges  of  the  Supreme  Court  of  the  U.  States,  in  relation  to  this 
question.  In  those  cases  the  validity  of  acts  of  limitation  in  refer- 
ence to  antecedent  contracts,  was  not  the  point  debated  before  or  to 
be  decided  by  the  Supreme  Court.  The  iudges  referred  to  acts  of 
limitation  to  illustrate  their  arguments  and  as  analogous  to  the  ques- 
tion they  were  considering,  and  each  assumed  the  principle  to  be 
what  they  supposed  in  such  a  case  it  would  be,  and  reasoned  upon 
that  assumption.  No  little  difference  of  opinion  seems  to  have  been 
entertained  by  the  judges  in  those  cases  (particularly  in  the  latter,) 
as  to  the  nature,  effect  and  validitv  of  such  laws,  arising  no  doubt 
from  the  fact  that  this  question  had  not  been  debated  before  them  or 
considered  by  them  with  a  view  to  a  decision  upon  it. 

In  the  case  of  Jackson  vs.  Lampshire,  3  Peters  280,  the  right 
of  a  state  to  pass  registering  and  recording  acts,  and  also  acts  of  limi- 
tation, and  to  prescribe  their  effect  is  expressly  recognized,  and  in 
Hawkins  vs.  Barney's  lessee,  5  Peters  467,  where  the  question  of 
constitutionality  of  an  act  of  limitation  of  Kentucky  was  discussed, 
its  validity  was  sustained. 

Does  an  act  of  limitation  which  mav  exist  at  the  time  a  contract  is 
made  enter  into  or  become  a  part  of  that  contract — or  does  it  pertain 
to  the  remedy  only? 

A  contract  is  an  an  agreement  bv  which  a  partv  enerages  to  do 
or  abstain  from  doing  a  particular  thinsr : — The  law  binds  him  to  n^r- 
form  his  undertaking — this  is  the  obligation  of  his  contract:  The 
obligation  of  the  contract  has  been  styled  "  the  chain  of  the  law  " 
which  applies  to  and  enforces  performance  or  the  pa\Tnent  of  an 
equivalent  for  non  performance.  The  contract  is  the  act  of  the  par- 
ties— the  law  imposes  the  obligation  or  duty  of  performance,  but  the 
remedy  by  which  that  performance  is  to  be  enforced  or  an  equivalent 
in  money  obtained  belongs  to  government  and  is  granted  on  such 
terms  and  to  such  extent  as  to  their  discretion  may  seem  proper. 


BisHor  vs.  Wilds'  Admr.  103 

Whether  an  act  of  limitation  which  takes  away  a  creditor's  right 
to  sue — or  limits  it  to  a  less  time  than  it  was  limited  by  the  law  ex- 
isting when  the  contract  was  made  impairs  the  obligation  of  his  con- 
tract and  is  a  violation  of  the  constitution,  is  not  the  question  pre- 
sented to  the  court;  and,  according  to  our  view  if  the  case,  is  not  one 
that  it  is  necessary  for  us  to  decide.  If  it  was  we  should  have  no 
difficulty  on  the  point.  The  question  before  us  is,  according  to  our 
apprehension,  a  very  different  one — It  is  whether  a  law  which  enlar- 
ges the  time  for  bringing  a  suit,  and  thus  keeps  the  cause  of  action 
alive  or  in  a  condition  to  be  sued  upon  for  a  longer  period  than  it 
would  have  been  by  the  law  in  force  when  the  contract  was  entered 
into,  is  a  law  impairing  the  obligation  of  a  contract? 

Does  the  keeping  the  contract  from  annihilation — the  preserving 
it  in  force  when  not  against  its  terms  or  stipulations,  import  the 
same  as  impairing  annulling  or  destroying  it?  To  continue  a  con- 
tract and  to  impair  or  destroy  it  are  matters  essentially  different. 
How  can  a  law  which  gives  life  or  action  to  a  lifeless  dead  or  inef- 
fective contract  be  said  to  impair  its  obligation  unless  that  death  or 
ineffectiveness  was  produced  by  the  terms  of  the  contract? 

In  this  case,  the  contract  and  obligation  of  the  ol)ligors  in  this  bond 
was  that  Williams  should  faithfully  discharge  his  trust  as  guardian, 
and  pay  and  deliver  to  the  plff.  all  such  sums  of  money  and  other 
estate  as  should  come  to  his  hands  as  guardian,  after  deducting  the 
allowances  that  might  be  made  by  the  register,  and  upon  this  event 
and  on  this  alone,  that  obligation  "should  he  void  or  else  should 
he  and  remain  in  full  force  and  virtue."  Performance  of  this 
engagement  and  performance  alone  according  to  the  terms  of  the 
contract  is  to  annul  or  satisfy  it.  This  bond  contains  no  stipulation 
tliat  the  obligors  shall  be  released  if  they  are  not  sued  u])on  it  within 
three  or  six  or  any  other  number  of  years.  Time  is  not  made  a  part 
of  this  contract — in  relation  to  it  there  is  no  contract  nor  stipulation. 
In  the  absence  of  any  contract  on  this  point  how  can  we  say  that  the 
obligation  of  the  defendant's  contract  is  impaired  by  a  law  which 
allows  the  plff.  a  further  time  to  compel  the  defendant  to  execute 
his  contract  than  was  given  by  the  law  which  was  in  force  when 
the  contract  originated,  when  according  to  the  terms  of  the  contract 
performance  alone  was  to  discharge  the  defendant  from  this  obliga- 
tion. 

The  CONTRACT  is  one  thing — that  the  legislature  cannot  alter — the 
remedy  for  a  violation  of  the  contract  is  another  and  may  he  altered, 
modified  enlarged  or  limited  according  to  the  discretion  of  the  legis- 
lature, who  alone  gives  it.  They  may  fix  a  period  within  which 
if  no  action  be  brought,  their  courts  shall  be  closed,  and  establish  as 
the  rule  for  the  government  of  their  courts,  that  th^  effect  of  such 
acquiescence  shall  be  evidence  that  the  contract  has  been  performed 
or  satisfied.  This  presumption  or  evidence  of  performance  is  not  a 
}iart  of  the  contract  and  they  may  in  their  discretion  change  or  alter 
it.  How  does  a  change  of  such  a  rule  of  7)resumntion,  or  evidence 
of  performance,  which  rule  is  created  hy  the  legislature  and  not  by 
the  parties,  impair  the  obligation  of  the  contract. 

In  this  state  the  lands  of  a  debtor  (^except  under  a  morteage)  can- 
not be  sold  by  execution  process,  if  the  rents  and  profits  will  in 


104  Bishop  vs.  Wilds'  Adm'r. 

seven  years  pay  all  liens.  If  this  restriction  were  repealed  and  the 
lands  of  a  debtor  sold  under  a  judgment  existing  prior  to  the  repeal, 
M'hicli  would  in  seven  years  pay  all  liens,  could  he  establish  the  po- 
sition that  such  sale  was  illegal  and  the  repealing  law  void  because 
a  more  prompt  and  enlarged  remedy  was  afforded  the  creditor,  than 
was  given  him  by  the  law  in  force  when  the  debt  arose.  Would  the 
obligation  of  his  contract  be  violated  or  impaired  by  the  repeal,  when 
that  repeal  merely  enlarges  the  remedy? 

In  Virginia  lands  cannot  be  sold  to  pay  debts,  but  as  in  England,  a 
moiety  is  delivered  by  elegit  to  the  creditor.  If  that  state  should 
adopt  our  system,  would  this  change  of  the  remedy  impair  the  ob- 
ligation of  contracts  existing  at  the  time  of  the  change  and  ])revent 
the  sale  of  lands  to  satisfy  debts  which  originated  before  the  change, 
l)ecause  lands  could  not  be  seized  and  sold  for  the  payment  of  debts 
when  these  debts  were  created?  Such  a  modification  of  the  remedy 
could  not  it  is  apprehended  be  deemed  an  impairing  of  existing  con- 
tracts or  of  their  obligation.  Such  acts  would  partake  of  the  char- 
acter of  acts  of  limitation,  and  would  all  be  held  as  relating  to  the 
remedy  and  not  interfering  with  the  contract  or  its  obligation,  as  the 
right  of  a  state  to  regulate  the  remedy  and  modes  of  proceeding  in 
its  own  courts,  and  to  prescribe  the  evidence  which  their  courts 
fehall  receive  and  the  effect  of  that  evidence  cannot  be  questioned. 
This  is  a  right  which  the  states  have  not  parted  with. 

It  does  not  belong  to  a  debtor  to  complain  that  a  legislative  act 
impairs  the  obligation  of  his  contract,  unless  the  terms  or  effect  of 
that  contract  be  altered  by  such  law. 

He  cannot  complain  that  the  obligation  of  his  contract,  which  is 
performance  of  his  agreement  according  to  its  stipulations,  is  im- 
paired, because  the  legislature  grants  to  his  creditor  further  time 
means  or  remedies  to  coerce  or  compel  the  debtor  to  execute  an 
agreement  or  contract  which  he  has  contracted  to  execute  or  perform 
without  limitation  as  to  time. 

The  debtor  is  not  for  upholding,  or  'sustaining  or  continuing  the 
existence  or  remedies  of  the  contract,  but  for  holding  it  at  an  end 
and  as  no  longer  of  any  obligation — not  because  he  has  performed 
what  'he  engaged  to  do,  but  because  his  creditor  has  not  forced  him 
to  that  performance  by  a  suit  within  a  given  time,  which  time  was  not 
provided  for  by  the  contract — and  he  contends  that  the  obligation  of 
his  contract  is  impaired  because  an  act  of  limitation  extends  to  the 
person  with  whom  he  contracted  further  time  for  suit  than  was  given 
by  the  law  when  the  contract  was  made.  That  the  extending  or 
enlarging  the  remedy  to  compel  the  defaulter  to  comply  with  his  con- 
tract— the  holding  the  contract  as  not  extinct  annihilated  or  without 
a  remedy  to  enforce  it,  impairs  the  obligation  of  that  contract.  Such 
in  our  judgment  is  not  the  construction  to  be  put  on  the  clause  of 
the  constitution  of  the  United  States,  and  we  cannot  consider  the 
10th  section  of  the  act  of  1829  regulating  the  remedy  on  contracts 
and  making  a  most  equitable  provision  for  the  renewal  of  actions, 
where  a  party  had  not  slept  upon  his  rights  beyond  the  time  fixed 
by  law,  but  asserted  them  by  an  action  within  time,  which  for  some 
error  has  been  reversed,  can  be  held  in  relation  to  a  debtor  as  impair- 
ing the  obligation  of  his  contract. 


BONWILL  VS.  DiCKSOX.  lOo 

There  remains  one  point  to  be  noticed  which  was  urged  Ijy  the 
counsel  for  the  defendant. 

The  declaration  avers  that  Lewis  Williams  did  not  in  liis  lifetime 
])ay  to  the  plff.  the  $3,000  the  penalty  of  the  bond  but  wholly  re- 
lused  so  to  do,  and  that  the  same  remained  at  his  death  and  still 
remains  due  and  unpaid  to  the  plff.  It  further  avers  that  neither 
John  Wilds  in  his  lifetime  or  Thomas  Wallace  his  administrator 
after  his  disease  though  often  requested  ever  paid  William  8.  Bishop 
any  part  of  that  sum;  but  there  is  not  an  express  averment  that  the 
administrator  of  Lewis  Williams  did  not  pay  the  amount  of  the  bond. 
I'^or  the  want  of  this  latter  averment  it  is  contended  the  declaration 
is  defective  and  that  as  the  demurrer  reaches  back  through  the  whole 
lecord  and  attaches  ultimately  upon  the  first  substantial  defect,  this 
error  in  the  declaration  of  the  plff.  must  be  fatal  to  his  action. 

The  answer  to  this  is  a  very  plain  and  conclusive  one.  No  part 
(if  this  record  shows  that  there  ever  existed  any  administrator  to 
the  estate  of  Lewis  Williams.  If  there  was  no  administration  on 
the  estate  of  Williams,  there  could  not  with  any  propriety,  certainlv 
there  was  no  necessity,  for  such  an  averment  as  is  contended  there 
should  have  been.  De  non  apparentibus  et  non  exisfentihus  eadem 
est  lex. 

This  declaration  negatives  payment  by  each  and  everv  person 
( onnected  with  the  guardian  or  this  suretv  or  their  estates  whose  du- 
ties and  rights  it  was  (so  far  as  appears  from  the  record)  to  pay  this 
l)ond  or  comply  with  its  condition.  It  avers  that  Williams  did  not 
])ay  in  his  lifetime — that  the  money  remained  due  and  unpaid  at  his 
death  and  still  remains  due  and  unpaid.  More  than  this  the  law 
does  not  require. 

The  opinion  of  the  court  therefore  is  that  the  demurrer  must  be 
overruled  and  that  judgment  be  entered  for  the  plff.  for  the  penalty 
of  the  bond  to  be  released  on  payment  of  the  sum  ascertained  ,l)y  the 
agreement  of  the  parties  to  be  due  and  the  costs. 

Judgment  for  plaintiff. 

Huifingion  and  Ridgely,  for  plff. 

Bates  and  Clayton,  for  deft. 


r^  ^       WILLIAM  M.  BOXWILL  vs.  SAMUEL  DICKSO^^. 
The  court  will  not  permit  a  party  to  demur  after  issue  joined  and  jury  sworn. 
Affirmative  pleadings  do  not  always  give  the  right  to  conclude;  this  depends 
on  the  onus  probandi  and  is  in  the  discretion  of  the  court. 


Trespass,  assault  and  battery.  Plea,  justification.  The  plea  of 
non  cul.  had  also  been  put  in;  but  before  trial  deft.'s  counsel  asked 
and  obtained  of  the  court  leave  to  withdraw  it.  The  plff.'s  counsel, 
though  in  court  when  the  motion  was  made,  were  not  annrised  of 
the  plea  being  withdrawn  until  after  the  jury  was  sworn.  They  then 
wished  to  demur,  but  the  court  w^ould  not  permit  them  as  they  had 
buffered  the  jury  to  be  sworn  without  objection. 

14 


lOG  Beesox's  Ex'r  vs.  Beesox. 

The  (lefondant  ofTercd  no  evidence  of  justification  but  merely  in 
mitigation  of  damages. 

A  question  then  arose  as  to  the  order  of  addressing  the  jury,  the 
deft,  claiming  the  right  to  conclude  as  his  only  plea  was  affirmative. 

Per  curiam;  The  question  is  one  upon  which  the  court  in  their 
discretion  pass,  and  it  depends  more  upon  the  state  of  the  proof  than 
of  the  pleadings.  Affirmative  pleadings  usually  impose  the  onus 
prohandi  hut  not  always,  in  this  case  the  deft,  has  offered  no  evi- 
dence whatever  to  sustain  his  plea  of  justification;  hut  only  in  mi- 
tigation of  damages.  It  is  not  the  case  of  a  contrariety  of  testimony 
on  the  point;  but  of  no  testimony.  The  plea  of  justification,  there- 
fore, Avithout  any  effort  to  support  it,  does  not  give  the  deft,  the  re- 
ply. It  is  essential  to  enable  the  jury  to  giv(»  a  verdict  that  the  plff. 
shall  proceed  to  show  his  damages.  He  therefore  is  entitled  to  the 
replv.  Roscoe  Ev.  132;  2  Starl\  Rep.  487;  14  Com.  Law  Rep. 
176";  Stark.  Ev.  Ch.  3  p.  384-5;  3  Camph.  366.  Chandler  et.al. 
vs.  Ferris,  post. 

The  plaintiff  had  a  verdict. 

Clayton  and  Bates,  for  plff. 

Ridgehj,  for  deft. 


RAY,  for  the  use  of  MOOX  vs.  WINLOCK  HALL. 
Justices  of  the  peace  must  certify  in  the  record  to  the  qualification  of  referees. 

Certiorari  to  justice.  Trial  by  referees,  report  and  judgment 
thereon. 

Exception.  That  it  does  not  appear  that  the  referees  were  duly 
sworn. 

The  record  did  not  otherwise  allude  to  the  qualification  of  the  ref- 
erees than  by  the  usual  expression  in  the  report  "  we  thie  referees 
after  having  been  duly  qualified,"  &c. 

Per  Cur.  The  proceedings  must  lie  reversed.  It  should  appear 
from  the  record  of  the  justice  that  he  had  sworn  the  referees,  and 
should  not  be  left  to  interference  from  their  report.     Sec.  6,  Dig.  333. 

Judgment  reversed. 


JOHN  ELLIOTT,  Ex'r.  of  REBECCA  BEESON  vs.  JOSEPH 
BEESON  and  THOMAS  BEESOX,  adm'r.  of  THOMAS  BEE- 
SOX,  deceased. 

Interest  may  be  recovered  on  the  arrears  of  an  annuity  given  in  lieu  of  dower. 
A  probate  may  be  produced  in  any  stage  of  a  cause. 

Sttmmons  debt.  Pleas,  nil  debet;  payment  and  the  act  of  limi- 
tations. Reps,  and  issues  to  first  and  second  pleas.  Demurrer  to 
the  third  plea. 

This  was  an  action  for  the  arrears  of  an  annuity  of  forty  pounds 
granted  by  the  will  of  Thomas  Beeson  to  his  wife  Rebecca  Beeson 
and  charged  upon  the  real  estate  devised  to  his  two  sons  Jonathan 


I! 


SiPPLE  VS.    SCOTTON. 


107 


and  Thomas  Beeson.  The  amount  claimed  to  be  in  arrear  at  the 
c.eath  of  Mrs.  Beeson  was  $382  92  which  sum  plff.  claimed,  with  in- 
terest by  way  of  damages. 

In  the  progress  of  the  cause  and  after  the  plff.  had  closed  his  case 
the  deft.'s  counsel  moved  a  nonsuit  for  want  of  probate.  The  pltf. 
l>roduced  a  probate  which  he  had  inadvertently  neglected  to  offer 
^vhile  laying  his  case  before  the  jury.  The  deft,  insisted  it  was  too 
late ;  but  the  court  received  the  probate  and  refused  the  nonsuit.  A 
probate  is  no  part  of  the  evidence  and  if  produced  when  demanded 
in  any  stage  of  the  cause  it  is  sufficient. 

The  principal  question  in  the  case  was  whether  interest  was  allow- 
able at  all  on  arrears  of  an  annuity;  and,  if  allowable  in  any  case, 
^7hether  it  could  be  recovered  as  damages  in  the  action  of  debt,  Tew 
\s.  Lord  Winterton,  3  Bro.  Ch.  Rep.  490.  It  was  contended  that 
in  debt  the  damages  were  always  nominal,  and  that  even  if  interest 
might  be  recovered  in  the  action  of  assumpsit  or  on  a  proceeding  in 
chancery  it  could  not  in  this  action.  This  question  was  reserved  for 
hearing  and  decision  by  the  court,  and  the  jury  found  a  verdict  for 
$240  90  inclusive  of  interest. 

The  case  was  stirred  at  a  subsequent  term  but  not  much  argued  on 
this  point.  The  court  howe^'er  said  that  the  law  in  this  countrv  on 
the  subject  of  interest  was  in  many  respects  different  from  the  Eng- 
lish law.  It  has  been  decided  in  this  state  that  interest  is  allowable 
on  the  arrears  of  an  annuity  given  in  lieu  of  dower.  Buckmaster 
XB.  Buckrn aster;  Chancery;  Kent.  (See  note  to  Waples,  ex'r.  vs. 
Waples  et  al.  post.) 

Judgment  for  plaintiff. 

Hamilton  and  Booth,  for  plff. 

J.  A.  Bayard,  for  deft. 


CALEB  H.  SIPPLE  vs.  JOHN  B.  SCOTTEX. 

The  inventxjry  and  appraisement  of  goods  is  the  levy. 

Notices  of  sale  should  specify  the  most  prominent  and  valuable  articles. 

An  unexpired  term  ought  to  be  specified  in  the  advertisement. 

Fi.  Fa.  Sale  made,  i7iter  alia,  of  the  unexpired  term  of  a  lease  of 
land  from  1st  January  1832  for  one  year.  Sale  made  1st  August 
1832. 

Kule  to  show  cause  why  the  sale  of  the  term  should  not  be  set 
aside.  First,  Because  it  was  not  entered  in  the  inventory  and  ap- 
])raisement  until  after  the  sale ;  and ;  and.  Second,  Because  it  was  not 
advertised  in  the  notices  of  sale;  which  being  proved — 

The  court  said  the  sale  must  be  set  aside.  The  property  was  not 
levied  on  until  the  day  of  sale.  The  act  of  assembly,  (Dig.  240,^ 
l)rovides  that  goods  shall  not  be  sold  until  thirty  days  after  levy  and 
notice.  In  England  seizure  and  possession  is  the  only  levy,  but 
here  the  practice  is  not  to  take  the  goods  into  nctual  possession.  Is 
not  therefore  an  inventory  and  appraisement  the  substitute  for  the 
levy?    It  would  seem  reasonable.     But  the  lease  was  not  advertised. 


108  Samuel's  Ex'r.  vs.  M'Dowell. 

Every  article  need  not  be  sepcified  in  the  notice  of  sale,  but  the 
most  prominent  and  valuable  should  be.  An  unexpired  term  in  a 
farm  is  of  this  description  and  ought  to  have  been  noticed.  It  sold 
in  this  case  for  $17,  and  is  proved  to  have  been  worth  $150. 

Kule  absolute. 
Frame,  for  plff. 


NICHOLAS  SAMUEL'S  Ex'r.  vs.  SAMUEL  M'DOWELL. 
A  public  agent  giving  a  due  bill  in  his  own  name  held  liable  personally. 

Capias  case.  Pleas,  Ne  unques  executor,  non  assumpsit,  pay- 
ment and  discount,  and  act  limitations.     Replications  and  issues. 

This  action  was  brought  for  the  amount  of  a  due  bill  ($65,)  given 
by  M'Dowell  to  Nicholas  Samuel  for  services  on  board  of  a  light 
boat  belonging  to  the  United  States.  The  evidence  was  that  McDow- 
ell was  a  deputy  of  the  collector  of  the  port  of  Wilmington,  and  re- 
ceived money  to  pay  the  wages  of  the  hands  employed  in  the  light 
boats  of  whom  Samuel  was  one.  These  hands  were  in  the  employ- 
ment of  the  United  States.  The  due  bill  was  produced.  It  was  as 
follows:  February  8,  1828,  Samuel  M'Dowell  acknowledges  to  owe 
Nicholas  Samuel  $65,  being  the  balance  due  for  his  services  on  board 
of  light  boat  No.  2.     (Signed)  Samuel  M'Dowell. 

Bayard  and  Read,  Jr.,  for  deft,  moved  a  nonsuit  on  the  ground 
that  an  action  would  not  lie  against  a  public  officer  for  a  breach  of 
official  duty.     7  Com.  L.  Rep.  434;  8  Bos.  &  Fid.  235. 

Hamilton  for  plff.  contended  that  a  deputy  collector  was  not  an 
officer  known  to  the  law,  and  that  the  deft,  had  made  himself  person- 
ally responsible  by  a  promise  in  his  individual  capacity.  It  is  not 
merely  an  implied  liability  but  an  express  undertaking. 

The  court  refused  the  nonsuit. 

We  recognize  the  general  principle  that  an  officer  of  the  govern- 
ment is  not  individually  bound  for  its  responsibilities;  but  this  is  not 
that  case.  Col.  Whilely  was  the  collector  in  this  case  and  received 
money  of  the  government  to  pay  these  men.  He  paid  the  money 
for  this  purpose  to  the  deft,  here  who  was  his  deputy,  clerk,  or 
agent.  We  dc  not  say  that  even  under  these  circumstances  there 
arises  an  implied  assumpsit  and  consequent  liability  on  the  part  of 
the  agent;  but  here  he  has  given  a  due  bill  for  the  amount,  acknowl- 
edging himself  to  be  personally  indebted  to  the  plff.'s  testator.  We 
think  that  neither  public  policy  nor  private  justice  will  require  or 
allow  that  he  should  not  be  considered  personally  responsible. 

The  cavse  went  on,  but  the  deft,  having  proved  an  actual  payment, 
had  a  verdict. 

Hamilton  for  plff. 

J.  A.  Bayard  and  Read,  Jr.,  for  deft. 


Duncan  vs.  Newlin.  lOD 

The  Lessee  of  JOHX  S.  VANDYKE  vs.  THOMPSOX,  KEYBOLD 

and  others. 

A  witness  to  a  deed  who  has  proved  it  in  court  may  be  impeached  though  he  be 
not  a  witness  in  the  cause. 

Ejectment.  This  ejectment  was  founded  on  a  deed  from  A. 
Jamison,  a  former  owner  of  the  property,  to  John  S.  Vandyke  in 
trust  for  his  son,  which  deed  the  defts.  alledged  to  be  a  forgery.  It 
had  not  been  recorded  until  about  the  time  of  bringing  this  suit 
though  dated  several  years  previous.  Before  recording,  the  deed 
was  proved  in  open  court  by  Henry  Sinex  one  of  the  subscribing 
witnesses,  the  other  being  dead. 

The  defts.  now  called  testimony  to  impeach  the  character  of  Sinex; 
which  Bayard  for  plff.  objected  to  on  the  ground  that  Sinex  had  not 
been  examined  as  a  witness  in  this  cause.  Not  having  been  sum- 
moned or  examined  as  a  witness  they  were  not  prepared  on  their 
side  to  meet  such  an  attack,  nor  was  the  other  side  entitled  to  make 
it.  The  witness  also  should  have  an  opportunity  to  sustain  his  own 
cliaracter,  and  the  administration  of  justice  was  concerned  that  the 
characters  of  testamentary  or  instrumental  witnesses  should  not  be 
thus  attacked  without  opportunity  of  defence  whenever  the  instru- 
ment itself  was  called  in  question. 

To  this  it  was  answered  by  J.  M.  Clayton  for  deft,  that  the  oath 
of  Sinex  gave  to  this  deed  its  only  consequence;  without  that  oath 
the  deed  could  not  be  read  in  evidence,  and  would  be  of  no  validity. 
The  testimony  therefore  of  Sinex  is  important  to  the  plff.  in  this 
cause;  and  the  defts.  have  a  right  to  attack  that  testimony  by  show- 
ing that  it  is  not  of  such  character  as  can  sustain  this  deed. 

By  the  Court. — We  think  the  defts.  have  a  right  to  impeach  the 
character  of  the  witness  who  proved  this  deed.  That  probate  is  an 
ex  parte  proceeding.  The  doctrine  contended  for  by  plff.  would 
lead  to  the  worst  of  consequences.  A  felon  convict,  or  insane  man 
might  go  before  the  prothonotary  and  prove  a  deed  which 'though 
forged,  might  not  be  invalidated  unless  you  could  attack  the  wit- 
ness' character. 

In  the  progress  of  the  cause  Mr.  Bayard  submitted  to  a  nonsuit; 
and  Vandvke  was  arrested  during  the  term  and  imprisoned  on  a 
charge  of  forgery. 

J.  A.  Bayard  f(Jr  plff. 

J.  M.  Clayton  and  Rogers  for  defts. 


r 


JOHX  DUXCAX  vs.  THOMAS  S.  XEWLIX,  surviving  partner  of 
XEWLIX  &  WOLLASTOX. 

A  parol  promise  revives  a  debt  due  by  promissory  note  for  six  years. 

Assumpsit,     Pleas,  non  assumpsit  and  act  of  limitations.     Issues. 
This  was  an  action  on  a  promissory  note  drawn  by  Xewlin  & 


110  Simmons  vs.  Logan. 

"WooUaston  iu  favor  of  Duncan,  and  dated  13th  October  1823,  for 
$404. 

On  the  books  of  Xewlin  &  WooUaston  were  the  following  credits; 
July  3,  182G,  credit  by  $100  or  account  of  this  note;  7th  May  1827 
interest  up  to  date,  and  31st  December  1827,  interest  to  date. 

Bayard  for  defts.  raised  this  question:  whether  if  a  promise,  or 
what  is  equivalent  to  a  promise,  be  proved  and  relied  on  to  take  a 
promissory  note  out  of  the  a^^  '^^  limitations,  that  promise  must  not 
be  within  three  years  of  the  bringing  suit.  And  he  argued  that  the 
promise  being  by  parol  could  have  no  greater  effect  in  reviving  an- 
v)ther  cause  of  action  than  if  itself  had  been  the  cause  of  action.  A 
parol  acknowledgment,  therefore,  of  a  debt  due  by  note  would  sus- 
tain that  note  no  longer  than  for  three  years. 

But  the  covrt  decided  that  such  an  acknowledgment  revived  the 
debt  in  its  original  efficacy.  The  admission  of  a  debt  existing  in  the 
shape  of  a  ^jromissory  note,  therefore,  revives  the  debt  for  the  whole 
period  applicable  to  such  a  form  of  security.  The  effect  of  the  ad- 
mission depends  not  upon  its  character  whether  by  parol  or  in  writ- 
ing, but  upon  the  nature  of  the  original  cause  of  action.  The  argu- 
ment however  would  fail  in  this  case  if  it  were  otherwise.  The 
proof  is  that  the  credit  of  July  3,  1826  of  $100  is  in  the  handwrit- 
ing of  Woolaston,  one  of  the  partners.  This  was  within  six  years 
of  the  bringing  this  suit  and  being  an  acknowledgment  under  the 
hand  of  the  party  of  a  subsisting  demand,  the  limitation  applicable 
to  it  would  be  six  years  even  if  this  were  the  ground  of  action.  The 
acknowledgment  is  in  the  books  of  the  partnership  and  therefore 
stronger  than  if  written  in  a  letter  or  other  form. 

A  verdict  was  taken  for  plff.  for  $388  80,  and  the  court  l^eing  re- 
quested reserved  this  question  for  the  court  in  bank.  C^^Ftrfe  post 
page. 

Hamilton  for  plff.     J.  A.  Bayard  for  deft. 


The  Lessee  of  GEOKGE  SIMMOXS  vs.  JOHN  LOGAX,  tenant  in 

possession. 

A.  being  seized  in  fee  of  an  estate,  joins  in  a  deed  of  partition  of  the  estate  of 
his  wife's  father,  and  takes  this  estate,  inter  alia,  as  his  wife's  share  of  her 
father's  estate  —  held  that  the  heirs  of  A.  are  estopped  from  claiming  A.'s 
original  title. 

A  deed  of  partition  operates  as  an  estoppel  to  the  parties  and  all  claiming 
under  them. 

Ejectment,  Verdict  taken  subject  to  the  opinion  of  the  court 
on  a  case  stated. 

The  case  stated  set  forth  that  William  Woodcock  and  others  by 
deed  dated  12th  March  1792,  conveyed  the  land  in  question  to  Pat- 
rick O'Flinn,  his  heirs  and  assigns.  That  Patrick  O'Flinn  died 
intestate  in  July  1818,  leaving  a  widow  Sarah,  and  one  child  Eliza- 
beth, the  wife  of  Alexander  Revnolds.  After  O'Flinn's  death  Rey- 
nolds and  wife  went  into  possession  of  the  land,  and  built  a  house  on 
it  and  lived  there  till  their  death.  F'pon  their  death  Sarah  O'Flinn 
took  possession  of  the  land  claiming  the  same  under  a  deed  of  parti- 


Simmons  vs.  Logan.  Ill 

lion  executed  by  a  certain  Mary  Muggins  of  the  one  part,  and  by 
I*atrick  O'Flinn  and  the  said  Sarah  of  the  other  part,  bearing  date 
ihe  13th  September  1811.  Sarah  O'Flinn  continued  to  receive  the 
7-ents  and  profits  of  the  land  in  dispute,  and  acted  as  the  owner  there- 
of until  her  death  in  December  1829,  On  the  26th  June  1819  Alex- 
iinder  Reynolds  and  wife  executed  a  mortgage  of  this  land  to  George 
Simmons  and  Eli  Sharpe.  On  this  mortgage  the  land  was  sold  by 
the  sheriff  and  purchased  by  the  said  George  Simmons  the  plff.'s 
lessor,  to  whom  a  deed  has  been  made  by  the  sheriff.  Logan  the 
deft,  is  in  possession,  claiming  under  Sarah  O'Flinn's  title  derived 
as  aforesaid  through  the  said  deed  of  partition. 
Extracts  from  the  deed: 

Indenture  made  13th  September  1811  between  Patrick  O'Flinn 
iind  Sarah  his  wife  of  the  one  part,  and  Mary  Huggins,  widow,  of 
the  other  part.  Here  follows  a  recital  that  William  Marshall  deceased, 
,vas  in  his  lifetime  seized  in  fee  of  the  several  tracts  and  pieces 
of  land  mentioned  in  this  deed  except  the  premises  now  in  dispute, 
<iesignated  in  that  deed  as  Xo.  7 :  that  being  so  seized  the  said  Wm. 
Marshall  died  having  made  a  will ;  that  by  virtue  of  the  said  will  the 
said  Mary  Huggins  and  Sarah  O'Flinn,  became  seized  of  all  the  real 
<^state  of  their  father  the  said  Wm.  Marshall,  "  as  co-parceners  in  fee 
simple."  Then  follows  this  recital :  "  And  whereas  during  the  ex- 
istence of  the  said  co-parcenary  the  said  Patrick  O'Flinn,  by  virtue 
of  an  indenture  of  bargain  and  sale  duly  executed  under  the  hands 
and  seals  of  Wm.  Woodcock  and  Letitia  Woodcock,  Samuel  Cars- 
well  and  Margaret  Carswell,  for  the  consideration  therein  mentioned 
became  lawfully  seized  as  of  fee,  of  and  in  a  certain  plantation 
or  tract  of  land  situate,  &c."  (described  as  No.  7,  heirig  the  land  in 
question,)  "which  said  tract  of  land  called  herein  No.  7,  hath  ever 
since  the  purchase  thereof  as  aforesaid,  been  held,  considered  and 
enjoyed  by  the  aforesaid  co-parceners  as  and  for  a  part  of  the  es- 
tate so  as  aforesaid  held  by  them  in  co-parcenary.  And  whereas, 
the  aforesaid  co-parceners  have  concluded  and  agreed  to  have, 
liold  and  enjoy  their  respective  parts  and  shares  of  and  in  the  before 
nentioned  lands,  tenements  and  hereditaments,  with  the  appurtenan- 
ces thenceforth  in,  sefveralty;  it  is  therefore  covenanited,  granted 
and  agreed  by  and  between  the  said  Mary  Huggins  and  Patrick 
O'Flinn  and  Sarah  his  wife  for  themselves,  their  heirs,  executors 
and  administrators  respectively;  and  they  do  hereby  covenant,  grant 
and  agree  to  and  with  each  other,  their  heirs  and  assigns  respectively, 
that  a  partition  and  division  of  the  same  shall  be  and  is  hereby 
made  and  determined  in  manner  and  form  following,  to  wit :  Firstly, 
that  the  said  Mary  Huggins,  her  heirs  and  assigns  shall  and  may 
lienceforth  forever  hold  and  enjoy  in  severalty,  all  that  the  follow- 
ing described  parts  or  shares  of  the  estates  so  as  aforesaid  held  in  co- 
jarcenary  which  are  hereby  divided  off,  partitioned  and  allotted  to 
iier  the  said  Mary  Huggins,  her  heirs  and  assigns."' 

(Here  follows  a  description  of  the  premises  allotted  to  M.  Hug- 
gins,) "  and  the  said  Patrick  O'Flinn  and  Sarah  his  wife  have  granted' 
released  and  confirmed,  and  by  these  presents  do  grant,  release  and 
confirm  all  the  aforesaid  four  several  lots,  tracts  or  pieces  of  land 
and  hereditaments  with  their  appurtenances  to  the  said  Mary  Hug- 


k 


112  Simmons  vs.  Logan. 

gins,  her  heirs  and  assigns,  as  and  for  lier  the  said  Mary  Huggins' 
iuU  share,  part  and  proportion  of  in  and  to  the  estate  so  as  aforesaid 
heretofore  held  in  co-parcenary. 

(Then  follow  the  habendum  and  tenendum  in  the  usual  form  with 
a  covenant  by  O'Flinn  and  wife  of  special  warranty  against  them- 
selves and  their  heirs,  &c.) 

"  Secondly.  That  the  said  Patrick  OTlinn  and  Sarah  his  wife, 
their  heirs  and  assigns  shall  and  may  from  henceforth  have,  hold, 
possess  and  enjoy  in  severalty  all  the  following  described  shares  or 
parts  of  the  real  estates  so  as  aforesaid  held  in  co-parcenary  which 
are  hereby  divided,  partitioned  and  allotted  to  the  said  Patrick 
O'Flinn  and  Sarah  his  wife,  their  heirs  and  assigns." 

(Here  follows  a  description  of  the  premises  allotted  to  Patrick 
O'Flinn  and  Sarah  his  wife,  in  which  is  included  the  whole  of  the 
tract  No.  7,  being  the  premises  in  dispute,  and  the  same  which  were 
conveyed  to  Patrick  O'Flinn  by  the  aforesaid  indenture  of  Wood- 
cock and  others  bearing  date  March  12,  1792.) 

"  And  the  said  Mary  Huggius  hath  granted,  released  and  confirmed, 
and  by  these  presents  doth  grant,  release  and  confirm  unto  the 
said  Patrick  O'Flinn  and  Sarah  his  wife,  their  heirs  and  assigns,  the 
above  four  several  lots,  tracts  or  pieces  of  land,  tenements  and  here- 
ditaments with  their  appurtenances,  as  and  for  the  said  Patrick 
O'Flinn  and  Sarah  his  wife's  full. share,  part  and  proportion  of  in 
and  to  all  the  real  estate  late  of  William  Marshall,  deceased,  and 
so  as  aforesaid  held  in  co-parcenary.  To  have  and  to  hold  the  same 
with  every  the  hereditaments  and  appurtenances,  to  them  the  said 
Patrick  O'Flinn  and  Sarah  his  wife,  their  heirs  and  assigns,  to  his, 
her  and  their  only  use,  benefit  and  behoof  forever." 

(Then  follows  a  covenant  by  Mary  Huggins  of  special  warrantv, 
&c.) 

This  deed  was  executed  and  acknowledged  in  due  form.  The 
certificate  of  acknowledgment  boars  date  21st  April  1812.  The 
deed  was  recorded  September  2,  1812. 

Rogers  for  the  plff. 

Stated  the  question  to  be  whether  the  legal  title  of  Patrick  O'Flinn 
was  divested  by  this  deed  of  partition. 

Booth  for  deft. 

The  land  was  conveyed  to  Patrick  O'Flinn  bv  Woodcock  and 
others,  but  for  the  use  of  the  heirs  of  Wm.  Marshall,  Mary  Huggins 
and  Sarah  O'Flinn.  It  was  always  held  in  co-parcenary  as  a  part 
of  the  state  of  Marshall  by  his  heirs  until  the  deed  of  partition.  It 
is  probable  that  it  was  bought  out  of  the  funds  of  that  estate.  In 
the  division  of  1811  it  is  expressly  included,  and  was  held  under 
that  division  until  the  death  of  Capt.  O'Flinn.  He  was  a  party  to 
this  deed.  Simmons  took  the  mortgage  and  subsequently  bought 
the  land  with  full  notice  of  these  facts,  for  the  deed  of  partition  was 
recorded.  Mrs.  Reynolds  was  the  only  child  of  O'Flinn  and  wife. 
The  plff.  takes  title  under  the  mortga2:e;  hf  therefore  takes  the  in- 
terest of  Revnolds  and  wife.  But  Pevnolds  and  wife  could  not 
claim  against  this  deed  of  partition.  The  property  having  always 
been  held  in  common,  recognized  as  such  under  the  hand  and  seal 
of  O'Flinn,  would  not  the  court  after  such  a  lapse  of  time  presume  a 


Simmons  vs.  Logan.  113 

declaration  of  use  by  O'Flinn.  Or  does  not  this  deed  of  partition 
itself  amount  to  a  declaration  of  use?  Any  words  showing  the  in- 
tention will  amount  to  a  covenant  to  stand  seized  to  a  use.  The 
consideration  of  a  covenant  to  stand  seized,  as  for  natural  love,  &c., 
need  not  be  expressed,  if  the  court  can  collect  it  from  the  con- 
nexion of  the  parties,  &c.  4  Cruise  134-5;  7  Coke  J?.  40;  4  Cruise 
189;  2  Black.  R.  1211. 

The  effect  of  such  a  construction  would  be  to  give  an  estate  to 
Patrick  O'Flinn  and  wife,  and  the  longest  liver,  per  tout  and  not 
per  my  and  to  their  heirs,  by  force  of  the  statute  of  uses.  An  estate 
being  to  husband  and  wife  and  the  longer  liver  and  the  heirs  of  such 
survivor,  the  husband  cannot  alien.    2  Cruise  508-9-10. 

Wales,  on  the  same  side. 

First.  A  deed  of  partition  is  binding  as  relates  to  the  lands  of  hus- 
band and  wife  without  the  intervention  of  a  trustee,  differing  in  this 
respect  from  other  deeds  where  a  trustee  must  be  interposed  in  con- 
veyances between  husband  and  wife.  The  wife  may  contract  in  re- 
spect of  her  separate  property.  Fitzherh.  62;  Dig.  89.  Second. 
Where  lands  are  held  in  trust,  they  are  subject  to  the  trust  in  the 
hands  of  the  heirs  of  the  trustee.  The  legal  title  to  this  land  was 
not  in  Capt.  O'Flinn  after  the  deed  of  partition:  that  deed  amounts 
to  a  declaration  of  use  on  his  part.  By  owt  act  of  assemblv  the  legal 
estate  is  made  to  accompany  the  use  and  pass  with  it.  This  decla- 
ration divested  O'Flinn's  legal  title.  The  admission  that  this  land 
was  the  separate  property  of  ]\frs.  O'Flinn  together  with  Mary 
Huggins  as  heirs  of  Wm.  Marshall,  makes  O'Flinn  in  respect  to  it 
a  "tenant  only  in  right  of  his  wife.  Third.  The  heirs  of  Patrick 
O'Flinn  cannot  recover  the  land  against  the  deed  of  their  ancestor. 
This  deed  covenants  that  the  land  shall  be  to  O'Flinn  and  wife  and 
their  heirs.  Yet  the  plff.  is  claiming  under  the  heirs  of  O'Flinn  in 
opposition  to  this  deed.  Coivp.  473;  do.  201;  4  Burr.  2208;  8  T. 
Rep.  118,  &c. ;  Reeves  Dam.  Rel.  89 ;  3  East  15. 

What  estate  did  the  husband  and  wife  take  here?  We  consider  it 
the  estate  of  the  wife,  Mrs.  O'Flinn ;  or  it  was  an  estate  to  O'Flinn 
and  wife  by  entirety,  going  to  the  longest  liver. 

Rogers,  for  plff.  in  reply. 

The  rules  and  cases  don't  apply.  No.  7,  was  no  part  of  the  es- 
tate of  William  Marshall.  This  is  clear.  It  was  conveyed  to  O'Flinn 
by  Woodcock  and  others.  The  idea  of  a  trust  estate  in  this  case  is 
founded  on  the  assumption  that  this  property  was  bought  with  the 
funds  of  Marshall's  estate,  which  does  not  appear,  and  which  we 
deny.  But  if  it  had,  the  personal  estate  of  Marshall,  his  wife's  part 
of  it,  belonged  to  the  husband  absolutely,  and  the  land  purchased 
with  it  would  equally  belong  to  him.  And  in  regard  to  Mrs.  Hug- 
gins,  if  she  could  have  any  interest  in  the  land  so  purchased,  it  is 
only  an  equity  and  is  merged  in  the  legal  estate  conveyed  by  her  in. 
the  deed  of  partition.  As  to  covenants  in  this  deed,  Patrick 
O'Flinn  makes  no  covenant  in  relation  to  No.  7,  for  that  part  is  in 
fact  conveyed  by  Mrs.  Huggins.  Here  is  no  partition  of  lands  be- 
tween husband  and  wife.     We  submit  then  that  the  legal  estate  has 

15 


114  Simmons  vs.  Logan. 

not  been  divested  out  of  Patrick  O'Flinn  by  this  deed;  and  that  the 
plff.  is  entitled  to  recover. 

This  case  was  argued  at  the  conclusion  of  the  term  and  held  under 
advisement  by  the  court. 

Mr.  Justice  Robinson  delivered  the  opinion  of  the  court. 

Robinson,  J. —  Mary  Huggins  and  Sarah  O'Flinn,  being  entitled 
to  a  fee  simple  estate  in  several  tracts  or  parcels  of  land  as  devisees  of 
Wm.  Marshall  their  father,  Patrick  O'Flinn,  the  husband  of  Sarah, 
purchased  a  tract  of  land  adjoining  the  same  as  conveyed  to  him  in 
fee  by  deed  dated  the  12th  day  of  March  1792.  On  the  13th  day  of 
September  1811,  Patrick  O'Flinn  and  Sarah  his  wife  of  the  one  part, 
find  Mary  Huggins  of  the  other  part,  executed  and  acknowledged  a 
deed  of  partition,  called  an  indenture,  to  which  the  said  Sarah  was 
privately  examined  before  the  Chief  Justice  of  the  Supreme  Court  in 
proper  form.  In  this  deed  it  was  recited  that  Mary  Huggins  and 
Sarah  O'Flinn  were  seized  of  all  the  real  estate  of  their  father,  as  co- 
parceners in  fee,  and  that  the  tract  of  land  purchased  by  Patrick 
O'Flinn  as  aforesaid,  had  ever  since  the  purchase  thereof  been  held, 
considered  and  enjoyed  by  the  said  co-parceners  as  and  for  a  part  of 
the  estate  so  as  aforesaid  held  by  them  in  co-parcenary.  That  the 
said  co-parceners  had  concluded  and  agreed  to  have  and  hold  their  re- 
spective parts  of  the  before  mentioned  lands  and  tenements  in  sev- 
eralty: and  it  was  therefore  covenanted,  granted  and  agreed  by  and 
between  the  said  Mar}'  Huggins  and  Patrick  O'Flinn  and  Sarah  his 
wife,  for  themselves  and  their  heirs  respectively,  to  and  with  each 
other,  their  heirs  and  assigns  respectively,  that  a  partition  and  division 
of  the  same  should  be,  and  was  thereby  made  and  determined  in  man- 
ner and  form  following,  to  wit:  First.  That  the  said  Mary  Huggins, 
her  heirs  and  assigns,  should  and  mi<yht  thenceforth  forever  have  and 
enjoy  in  severalty,  the  land  and  premises  allotted  to  her  and,  after  de- 
scribing the  same,  Patrick  O'Flinn  and  Sarah  his  wife  granted,  re- 
leased and  confirmed  the  same  to  the  said  Mary  Huggins,  her  heirs 
and  assigns,  as  and  for  her  full  share  and  proportion  of  the  estate  so 
as  aforesaid  held  in  co-parcenary,  with  a  covenant  of  special  warranty 
against  themselves,  their  heirs  and  assigns.  Secondly.  That  Patrick 
O'Flinn  and  Sarah  his  wife,  their  heirs  and  assigns,  should  and  might 
from  thenceforth  have,  hold,  possess  and  enjoy  in  severalty  the  lands 
and  premises  allotted  to  them;  and,  after  describing  the  same,  Mary 
Huggins  granted,  released  and  confirmed  the  same  to  them,  their  heirs 
and  assigns,  as  and  for  their  full  share  and  proportion  of  the  real  es- 
tate late  of  Wm.  Marshall  deceased,  and  so  as  aforesaid  held  in  co- 
parcenary, with  a  covenant  of  special  warranty  against  her  and  her 
heirs.  The  tract  of  land  in  dispute,  was  purchased  by  Patrick  O'Flinn 
as  before  stated,  and  was  included  in  the  sharp  allotted  and  conveyed 
to  him  and  his  wife  as  aforesaid.  Patrick  O'Flinn  died  intestate  in 
the  month  of  July  1818,  leaving  to  survive  him  Sarah  his  wife,  and 
one  child  named  Elizabeth,  then  the  wife  of  Alexander  Reynolds. 
After  his  death  Reynolds  and  wife  entered  on  this  tract  of  land ;  and, 
being  in  possession,  on  the  26th  day  of  June  1819,  executed  and  ac- 
knowledged a  mortgage  deed  for  the  same  to  George  Simmons  and 
others,  which  was  recorded  in  time.    Reynolds  build  a  dwelling  house 


Simmons  vs.  Logan.  115 

on  the  same,  and  he  and  his  wife  continued  to  reside  thereon  nntil 
ihey  died.  After  which  Sarah  O'Flinn  claiming  under  the  partition 
deed  received  the  rents  and  profits,  and  acted  as  the  owner  thereof 
until  her  death,  about  the  8th  December  1829.  It  was  sold  under  the 
mortgage'  deed  of  Eeynolds  and  wife  by  the  sheriff  of  Newcastle 
county,  and  purchased  by  George  Simmons  the  plff.,  and  conveyed 
to  him  by  the  said  sheriff. 

It  was  insisted  on  behalf  of  the  deft,  that  this  deed  of  partition 
created  a  covenant  by  Patrick  OTlinn,  to  stand  seized  of  the  land  in 
dispute  to  the  use  of  his  wife  and  Mary  Huggins,  and  that  the  grant 
;*rom  Mary  Huggins  to  Patrick  O'Flinn  and  his  wife  passed  her 
moiety  in  fee,  and  that  the  other  moiety  vested  in  Sarah  O'Flinn  by 
i;he  covenant  to  stand  seized.  It  is  true  that  if  Patrick  O'Flinn  was 
seized  in  fee,  he  was  the  only  party  to  this  deed  who  could  pass  the  es- 
tate or  interest  in  this  land  by  such  a  mode  of  conveyance.  But 
neither  in  the  recital  of  this  deed,  nor  any  other  part  of  it,  are  there 
any  words  of  covenant  or  any  that  can  be  construed  to  be  such  on  the 
part  of  O'Flinn.  Neither  does  it  appear  that  it  was  his  intention  to 
oonvey  by  deed  any  estate  from  himself.  In  all  deeds  of  partition,  it 
is  said  to  be  necessary  that  the  parties  should  mutually  convey  to  each 
other  the  several  estates  which  they  are  to  take  in  severalty  under  the 
partition.  That  was  done  by  the  parties  to  this  deed,  and  the  con- 
sideration was  the  mutual  recompense  each  took  in  their  respective 
shares  of  the  estate  divided,  which  cannot,  consistently  with  the  re- 
cital in  the  deed  of  this  land,  having  been  held  as  part  of  the  co-par- 
cenary estate  of  Mary  and  Sarah,  be  averred  as  a  consideration  for  a 
covenant  to  stand  seized  contrary  to  the  plain  intention  of  the  parties. 
As  a  covenant  to  stand  seized,  as  insisted  upon,  it  would  have  vested 
one  moiety  in  Mary  Huggins  in  fee,  and  the  other  in  Sarah  O'Flinn, 
and  as  Mary  Huggins  conveyed  all  her  interest  to  Patrick  O'Flinn  and 
Sarah  his  wife  in  fee,  then  Patrick  O'Flinn  and  Sarah  his  wife  would 
have  taken  one  moiety  by  entireties,  which  in  the  event  of  the  death  of 
Sarah  before  her  husband  would  have  belonged  to  him,  whilst  the 
other  moiety  would  have  belonged  to  the  heirs  of  Sarah.  This  never 
could  have  been  the  intention  of  the  parties.  But  this  deed  is  the  in- 
denture of  all  the  parties,  by  which  Mary  Huggins  granted  the  land 
in  dispute  to  Patrick  O'Flinn  and  Sarah  his  wife,  and  their  heirs  and 
assigns :  to  have  and  to  hold  the  same  to  them,  their  heirs  and  assigns, 
to  his,  her  and  their  only  use,  benefit  and  behoof  forever.  Patrick 
O'Flinn  and  his  wife  accepted  this  grant,  and  they  also  accepted  this 
tract  of  land  as  a  portion  of  their  share  of  the  lands  divided.  No  in- 
terest passed  in  this  land  from  Mary  Huggins  by  her  conveyance,  but 
it  operates  as  an  estoppel  against  all  persons  claiming  under  Patrick 
O'Flinn  and  his  heirs.  They  are  concluded  by  it  from  claiming  the 
lands  under  the  deed  to  him  of  the  12th  of  March  1792.  This  view 
of  the  case  is  strengthened  by  the  recital,  which  admits  that  Patrick 
O'Flinn  had  purchased  this  land  and  had  become  seized  thereof  in  fee 
by  that  deed.  Thus  if  a  man  takes  a  lease  by  indenture  of  his  own 
land,  whereof  he  is  in  actual  possession,  this  estops  him  to  say  the 
lessor  hath  nothing  in  the  land,  for  by  acceptance  thereof  by  indenture 
he  is  as  perfect  a  lessee  as  if  the  lessor  had  an  absolute  fee.    4  Bac.  Ah. 


116  Rambo  vs.  Wil.  &  Philad'a.  Turnpike  Co. 

187.  So  if  the  disseizor  by  deed  indented  make  a  feoffment  in  fee 
whereunto  livery  of  seizin  is  requisite,  yet  the  indented  deed  shall  not 
suffer  the  livery  made  to  work  a  remitter  to  the  disseizee,  but  shall 
estop  him  to  claim  his  former  estate ;  and  the  reason  is,  that  the  deed 
indented  is  the  deed  of  both  parties,  and  therefore  the  taker  .as  well  as 
the  giver  is  concluded.  Co.  Litt.  363-6.  And  if  two  make  partition  in 
a  court  of  record,  where  one  of  them  have  no  right,  be  thereby  shall 
gain  a  moiety  by  estoppel.  Id.  170  h.  note  (3.)  In  3  Johns.  Rep.  331^ 
it  was  decided  in  New-York,  that  a  partition  deed  operates  as  an  es- 
toppel as  to  the  parties  and  all  claiming  under  them.  Previous  to  the 
statute  of  frauds  in  England,  partition  between  co-parceners  might 
be  made  by  parol,  and  the  acceptance  of  an  estate  under  such  parti- 
tion made  an  estoppel.  Thus  if  J.  S.  seized  of  land  in  fee  had  issue 
two  daughters,  Rose  a  bastard,  and  Ann  born  in  wedlock,  and  J.  S. 
died:  Rose  and  Ann  both  entered  and  made  partition:  Ann  and  her 
hcjjs  were  concluded  forever.  Co.  Litt.  170,  b.  If  such  was  the  ef- 
fect of  a  partition  by  parol,  a  partition  made  by  a  solemn  deed  makes 
the  CISC  nineh  stronger.  Patrick  O'Flinn  and  Sarah  his  wife  being 
but  one  purson  in  law,  they  did  not  take  separate  estates  in  this  land 
but  each  the  entirety;  after  his  denth  the  same  so  continued  to  belong 
to  her,  she  being  seized  of  the  whole  by  estoppel.  For  as  was  said  by 
the  court  in  the  case  of  Trevivan  against  Lawrence,  1  Salk.  276,  that 
where  an  estoppel  works  on  the  interest  of  the  land  it  runs  with  it 
into  whose  hands  soever  the  land  comes  and  an  ejectment  is  maintain- 
able on  the  estoppel :  it  must  of  course  be  sufficient  to  defend  in  a  case 
where  the  plff.  must  recover  on  the  strength  of  his  own  title. 

Judgment  must  therefore  be  entered  for  the  defendant. 

Eogers  for  plff. 

Booth  and  Wales  for  deft. 


RICHARD  RAMBO  vs.  THE  WTLMiyCrTOV  &  PHILADELPHIA 
TURNPIKE  COMPANY. 

Commutation  not  allowajble  for  a  part  of  this  road  only. 

Case  for  not  permitting  plff.  to  commute  for  travelling  on  a  part 
of  the  turnpike  road. 

The  question  in  this  case  was,  whether  under  the  27th  section  of  the 
act  incorporating  this  turnpike  company,  an  individual  had  a  right  to 
commute  for  the  use  of  a  part  only  of  the  road.  4  Del.  L.  644 ;  5  do. 
170.  The  plff.  contended  that  the  law  allows  a  commutation  for  any 
one,  two,  or  more  miles  of  the  road,  at  one  dollar  per  mile;  and  the 
deft,  insisted  that  commutation  was  allowable  only  for  the  use  of  the 
whole  road,  the  amount  however  to  be  determined  by  the  extent  as 
well  as  the  frequency  of  the  travelling.  The  plff.  had  tendered  the 
company  the  necessary  advance  on  a  commutation  for  the  privilege  of 
travelling  two  miles  of  the  road  at  the  rate  of  two  dollars  per  year, 
which  the  company  refused,  and  required  three  dollars  for  the  priv- 
ilege of  the  whole  road.  This  was  proved  to  have  been  the  uniform 
mode  of  commuting. 


Johnson  vs.  Farmers'  Bank. 


117 


The  Court  were  of  opinion  on  a  construction  of  the  acts  of  assembly 
in  relation  to  this  turnpike  company,  that  an  individual  had  no  right 
to  commute  for  the  use  of  a  part  only  of  the  road.  The  act  of  incorpo- 
ration provides  for  "  an  annual  contract  for  the  use  of  the  said  road," 
and  entitles  the  commutant  "  to  all  the  tenefits  of  the  same  "  for  one 
dollar  per  mile ;  and  if  this  sum  is  considered  unreasonable  or  dispro- 
portionate to  the  number  of  the  commutant's  family  "  and  their  use 
of  the  said  road,"  ample  provision  is  made  for  reducing  the  rate  to  a 
sum  proportioned  to  the  use  of  the  road  as  well  in  extent  as  the  fre- 
quency of  the  travelling.  N"o  injustice,  therefore,  can  te  done  to  a 
commutant  who  ordinarily  uses  but  a  small  portion  of  the  road,  by 
requiring  him  to  contract  for  the  privilege  of  the  whole  road ;  and 
s  jch  seems  to  be  the  proper  meaning  of  the  law. 

Plaintiff  nonsiiited. 

J.  A.  Bayard  for  plff. 

Hamilton  for  deft. 


SAMUEL  JOHXSOX 


vs.  The  FAR^rp^ES'  BAXK 
of  DELAWARE. 


of  the  STATE 


The  cashier  of  a  bank  is  a  competent  witness  to  prove  the  amount  of  a  deposit 
in  an  action  against  the  bank  for  it,  if  he  be  released;  or  perhaps  without 
a  release. 

The  deposite  book  or  scratcher  is  evidence  against  a  dealer. 

AVhen  an  attorney  is  privileged  from  giving  evidence. 

A  depositor  must  make  an  actual  demand  for  his  deposit  before  suit  brought. 


Assumpsit.  Pleas,  non-assumpsit,  payment,  discount  and  the  act 
of  limitations.    Issues. 

This  was  an  action  brought  against  the  bank  to  recover  the  amount 
of  a  deposit  alledged  to  have  been  made  by  plff.  He  had  made,  as  he 
<'ontended,  a  deposit  in  the  bank  of  $600,  and  he  had  an  entry  of  that 
amount  in  his  bank  book,  which  the  bank  alledged  was  a  mistake. 
The  Bank's  books  credited  him  with  $400  only. 

The  plff.  produced  and  proved  his  bank  book.  It  contained  a  credit 
imder  date  of  April  14,  1830,  of  a  deposit  in  notes  $600,  altered  to 
$400.  He  also  produced  a  letter  from  Doct.  Cooper  the  cashier,  stat- 
ing that  he  had  made  the  alteration,  being  convinced  there  was  a  mis- 
iake  in  the  original  entry  which  was  $600.  The  credit  was  in  the 
liandwriting  of  the  cashier. 

The  plff.  here  rested  his  case. 

The  deft,  called  Doct.  Cooper  the  cashier.    Objected  to. 

He  would  be  liable  to  the  bank  for  his  negligence  if  there  should  be 
u  recovery  here,  and  the  amount  of  the  recovery  would  fix  the  amount 
of  his  liability.    Therefore  interested. 

The  defts.  then  produced  a  release  under  the  seal  of  the  corporation. 
To  this  it  was  objected  that  the  local  board  of  this  branch  of  the  Far- 
mers' Bank  could  not  execute  a  release,  and  could  not  use  the  corpo- 
rate seal  for  such  a  purpose,  without  a  resolution  of  the  sreneral  board 
')f  directors.  No  such  authoritv  was  proved.  The  court  said  they 
«30uld  only  look  to  the.  seal,  which  carried  with  it  the  sanction  of  the 
corporation,  but  they  intimated  an  opinion  that  the  cashier  would  be 


118  Johnson  vs.  Fabmers'  Bank. 

a  competent  witness  without  a  release,  from  the  necessity  of  the  case. 
A  servant  of  a  tradesman  may  prove  the  delivery  of  goods  and  pay- 
ment of  money  without  a  release,  and  so  in  many  other  cases  persons 
similarly  situated  are  admitted  ex  necessitate.  1  Ph.  Ev.  95 ;  2  Stark. 
753;  4  Term  Rep.  590;  1  Str.  547. 

Doct.  Cooper  sworn.  Produced  the  book  of  original  entries.  Ob- 
jected to. 

Bayard.  The  books  of  a  corporation  though  evidence  as  against 
corporators,  are  not  evidence  against  strangers. 

Rogers.  A  depositor  or  dealer  is  not  a  stranger  to  the  corporation : 
and  the  books  must  be  admitted  from  necessity. 

Bayard.  The  checks  are  the  best  evidence  until  given  up,  which 
is  not  until  the  book  is  settled.  Until  then  the  entries  on  the  books 
are  but  secondary  evidence. 

The  court  admitted  the  book  with  the  oath  of  Doct.  Cooper,  proving 
it  the  book  of  original  entries.  We  have  admitted  the  cashier  ex 
necessitate.  The  entries  made  by  him  as  the  agent  or  servant  of  the 
bank  fall  under  the  same  rule.  If  he  proves  the  book  to  have  been 
regularly  kept,  and  the  entries  there  made  correct,  such  entries  are  evi- 
dence. This  is  the  scratcher  or  original  account  book  of  the  bank.  The 
corporation  books  alluded  to  are  strictly  the  books  containing  the  re- 
solves and  acts  of  the  board  of  directors  or  other  corporate  authority. 

Doct.  Cooper. —  Johnson  made  the  deposit.  I  entered  it  on  the 
books  of  the  bank  and  on  his  book.  The  entry  in  our  book  was  $400 : 
in  his  $600.  He  brought  a  check  of  Andrew  C.  Gray  for  $406  84,  and 
mentioned  to  me  the  amount  of  his  intended  deposit.  I  then  sent  him 
to  the  teller's  side  to  get  the  check  changed,  and  his  deposit  with  me 
was  in  notes.  If  his  deposit  had  been  more  than  the  check,  I  should 
have  taken  it  with  the  money,  and  entered  it  as  a  deposit  of  checks  and 
notes,  which  is  our  invariable  rule.  I  infer  from  my  sending  him  to 
the  teller,  that  the  deposit  was  of  a  part  only  of  the  check.  On  a  set- 
tlement made  every  two  days  we  found  our  books  correct.  On  the 
monthly  balance  it  was  also  correct. 

He  produced  a  letter  from  plff.  stating  that  his  deposit  was  $600,  in 
a  check  from  Mr.  Gray  of  $400,  and  $200  in  cash. 

Andrew  C.  Gray,  Esq.,  called.  Objected  to  bv  plff.  and  also  by 
himself,  stating  that  he  had  been  the  attorney  of  Johnson,  and  that 
any  thing  he  knew  in  relation  to  the  matter  must  have  been  derived 
from  this  relation. 

Read,  Jr.,  for  deft,  insisted  on  his  examination.  The  privilege  is 
that  of  the  client  and  not  of  the  attorney,  and  the  court  are  to  decide 
whether  the  disclosure  was  confidential,  whether  it  was  made  to  the 
witness  as  an  attorney.  If  not,  it  is  not  protected.  And  the  books 
confine  it  to  disclosures  made  to  an  attorney  in  the  cause.  It  depends 
upon  the  nature  and  time  of  the  disclosure,  and  the  fact  to  be  proved. 
The  object  here  is  to  prove  the  amount  of  a  check  given  by  Mr.  Gray 
to  Johnson,  for  money  which  he  had  collected,  and  also  to  prove  that 
when  the  check  was  given,  Johnson  said  be  had  not  money  enough  to 
go  to  Philadelphia.    This  communication  had  no  relation  to  any  cause. 


I 


Johnson  vs.  Farmers'  Bank.  119 

li  was  a  fact  stated  not  as  between  attorney  and  client,  nor  in  any 
confidence,  and  is  not  protected  because  the  gentleman  to  whom  it 
was  stated  happened  to  be  an  attorney.    10  Mad.  40. 

Bayard.  Any  knowledge  that  a  man  acquires  from  his  client  be- 
cause he  is  the  attorney  is  confidential,  and  cannot  be  disclosed.  At- 
torneys in  England  are  on  a  different  footing  from  attorneys  here. 
There  is  no  distinction  in  this  state  between  attorneys  and  counsel. 
The  characters  are  united. 

The  Court  required  Mr.  Gray  to  be  sworn.  3  Stark.  397 ;  2  Saund. 
566;  4  Term.  Rep.  753. 

Andrew  C.  Gray,  sworn. —  Produces  the  check  dated  13th  April 
1830,  for  $406  84.  It  was  for  money  collected  by  me  for  Johnson. 
Be  told  me  he  was  without  funds.  Johnson  returned  to  Philadelphia 
the  17th. 

Howell  J.  Terry  sworn  —  Is  the  teller  of  the  bank.  This  check  was 
presented  to  me  on  the  14th  April  1830,  and  I  cashed  it.  It  was  pre- 
s(^nted  by  and  paid  to  Johnson  personally.  Independently  of  this 
claim  there  is  a  balance  now  due  John  of  $8  75. 

Bayard,  counsel  for  plff.  sworn  at  his  own  request. 

I  made  a  demand  on  the  president  of  the  bank  for  the  balance  due 
Johnson,  before  suit  brought. 

This  testimony  was  objected  to  as  not  competent  to  be  given  in 
reply. 

The  Court. —  A  demand  in  the  case  of  a  claim  on  an  individual  is 
not  necessary.  The  bringing  a  suit  is  a  demand.  But  with  regard  to 
deposits  in  a  bank  the  rule  must  be  different.  If  a  deposit  be  made 
to-day,  a  suit  could  not  be  immediately  brought  for  it  without  demand. 
A  demand  being  necessary,  the  proof  of  it  constitutes  a  part  of  the 
plff's.  case,  and  must  be  made  in  the  opening.    Testimony  rejected. 

Mr.  Bayard,  to  the  jury  on  the  facts. 

He  contended  that  the  evidence  was  sufficient  to  establish  the  de- 
posit of  $600 ;  —  and  he  relied  upon  the  entry  made  by  the  cashier  at 
t  le  time  of  the  deposit  in  the  dealers  bank  book.  This  was  the  dealer's 
only  evidence  and  the  only  security  he  had  for  the  repayment  of  his 
money.  He  contended  that  on  grounds  of  public  policy  and  for  the 
protection  "of  individual  rights,  much  exposed  as  they  were  to  the 
power  of  these  institutions,  such  an  entry  ought  to  be  considered  as 
conclusive  upon  the  book  and  not  be  enquired  into  or  contradicted  by 
the  testimony  of  the  bank's  officers,  and  he  cited  4  Johnson's  Reports 
377,  where  judge  Spencer  said,  that  particular  errors  in  a  balanced 
account  may  be  enquired  into,  but  he  adds,  in  my  mind  there  is  this 
exception,  if  an  entry  is  made  in  a  customer's  bank  book  at  the  time 
of  the  deposit,  the  entry  is  conclusive.  This  distinction  is  a  sound  one 
and  ought  to  be  recognized. 

Rogers  for  defts. 

The  question  is  not  what  the  law  ought  to  be  but  what  the  law  is. 
The  case  in  4  Johnson  does  not  decide  the  rule  contended  for.  That 
v/as  not  the  point  in  the  cause :  it  was  a  mere  obiter  dictum  or  sug- 
gestion of  the  judge.  The  phrase  is,  "in  my  mind,"  there  is  this 
distinction.     In  19  Johns,  it  is  settled  that  the  entrv  in  the  dealer's 


120  St.  Peter's  Church  vs.  Larkin's  Ex'rs, 

book  is  not  conclusive  as  against  him.  Why  should  it  be  conclusive 
against  the  bank?  The  general  principle  is  well  settled  as  between  in- 
dividuals that  mistakes  of  this  kind  in  the  settlement  of  accounts  may 
be  corrected.  Even  if  a  receipt  be  given  it  is  not  conclusive.  Further, 
a  bond  is  open  to  inquiry  on  fraud  or  mistake;  and  a  mistake  in  an 
award  is  inquirable  into.  A  judgment  on  the  award  may  be  opened 
under  particular  circumstances.  The  rule  contended  for  would  form 
an  exeception  to  all  the  cases.  In  19  Com.  L.  R.  it  is  decided  that  the 
entry  on  the  bank  books  is  not  conclusive.  19  Johns.  115;  14  Com. 
L.  R.  25;  Atigel  and  Ames  on  Corp.  133;  19  C.  L.  Rep.  412. 

As  to  the  facts  the  jury  cannot  doubt  that  the  deposit  in  this  case 
was  only  $400. 

Read,  jr.  On  the  same  side. 

Nothing  has  been  advanced  on  the  other  side,  but  an  extra-judicial 
opinion  of  judge  Spencer  which  has  been  contradicted  by  an  adjudged 
case  in  19  Johnson's  Reports.  The  entry  on  the  customer's  book, 
what  it  it?  An  acknowledgment  or  receipt  that  he  is  entitled  to  so 
much  money  from  the  bank.  But  a  receipt  is  inquirable  into  and 
there  is  no  reason  for  distinguishing  this  from  other  receipts. 

Bayard,  in  reply. 

This  entry  is  an  original  entry  and  on  principles  of  public  policy 
ought  to  be  conclusive.  Spencer's  decision  is  not  a  mere  dictum 
but  an  adjudged  point.  It  was  necessary  to  be  announced  in  stating 
the  law  applicable  to  that  case. 

The  court  here  suggested  that  this  being  a  new  question  of  great 
public  importance  it  would  be  well  to  reserve  it  for  the  court  in  bank. 
The  counsel  acquiesced,  but  went  on  to  the  jury  on  the  facts,  and 
the  plff.  had  a  verdict. 

•Whereupon  a  motion  was  made  for  a  new  trial,  on  the  ground  that 
the  verdict  was  against  law  and  evidence. 

The  case  was  not  brought  up  to  the  court  in  bank,  nor  was  the 
motion  for  a  new  trial  further  prosecuted;  the  bank  considering  it 
im,politic  in  reference  to  their  business  generally  to  defend  the  claim 
further. 

J.  A.  Bayard,  for  plff. 

Rogers  and  Reed,  J.r.,  for  defts. 


THE  STATE,  for  the  use  of  ST.  PETER'S  CHURCH  in  Wilming- 
ton vs.  JOHN  ROGERS  and  THOMAS  H.  LARKIN,  Ex'rs  of 
WILLIAM  LARKIN,  deceased. 

What  will  make  one  liable  as  administrator  de  son  tort  when  there  is  a  right- 
ful executor. 

Debt  on  a  bond. 

Thomas  H.  Larkin  one  of  the  defts.,  summoned.  Non  est  inven- 
tus, as  to  Rogers. 

The  pleas  were  nc  unques  executor  and  performance.  Replica- 
tions and  issues. 


St.  Peter's  Church  vs.  Larkin's  Ex'rs.  121 

This  action  was  on  a  bond  given  by  William  Larkin  as  manager  of 
Si  lottery  for  the  benefit  of  St.  Peter's  church  —  conditioned  to  ac- 
count for  and  pay  over  moneys  received,  &,c. 

In  relation  to  the  first  plea  the  will  of  William  Larkin  was  exhibited 
v^hich  nominated  Thomas  H.  Larkin,  his  son,  and  John  Eogers,  his 
executors.  The  will  being  proved  letters  testamentary  were  granted  to 
Eogers  alone.  Rogers  filed  the  inventory  and  list  of  debts  and  made  a 
settlement  before  the  Register  showing  a  balance  of  $6,920  31. 
Thomas  H.  Larkin  executed  to  Rogers  a  release  for  this  balance. 

Plff.  now  produced  evidence  to  charge  Thomas  H.  Larkin  as  ad- 
ministrator de  son  tort;  and  he  read  the  record  of  a  suit  brought  on 
tliis  bond  against  William  Larkin  in  his  lifetime.  After  his  death  a 
S(3ire  facias  issued  against  Rogers  and  Thomas  H.  Larkin  as  his  exe- 
cutors to  make  them  parties.  They  appeared  and  moved  to  quash 
tlie  writ,  which  was  done.  An  alias  issued  against  the  same  defts. 
This  also  was  quashed. 

This  evidence  was  objected  to;  and  the  Court  were  of  opinion 
tliat  it  was  not  evidence  to  charge  Thomas  H.  Larkin  as  an  adminis- 
t]'ator  de  son  tort,  as  he  did  not  take  defence  to  the  action,  nor  had  any 
occasion  of  pleading  that  he  was  not  an  executor,  (a) 

The  plffs.  went  on  to  lay  other  testimony  on  this  point  before  the 
jury,  but  the  case  was  finally  referred. 

Wales,  Booth  and  Rogers,  for  plfT. 

J.  A.  Bayard,  Read,  jr.  and  Hamilton,  for  deft. 


(a)  If  one  sues  for  and  receives  money  as  executor  he  is  chargeable  as 
a  iministrator  de  son  tort.  3  Bal.  21;  Went.  176;  1  Com.  D.  377;  Toller 
57;  2  T.  Rep.  97.     Or  pays  money  into  court  in  another  action. 

If  there  be  a  lawful  executor  and  an  executor  de  son  tort,  a  creditor 
niay  sue  them  jointly  or  severally.     Went.  178. 

If  previously  to  action  brought  he  pay  over  the  money  to  the  rightful 
executor  that  will  be  a  good  defence.  If  he  plead  ne  ungues  executor 
and  it  be  found  against  him  as  it  is  a  false  plea  he  shall  be  charged  with 
tlie  whole  debt  de  bonus  propriis.  If  he  plead  plene  administravit  he 
sliall  only  be  charged  with  the  assets  that  come  to  his  hands.  2  T.  R.  97, 
100;  3  Id.  587;  1  Salk.  313;  Went.  180;  3  Bac.  25;  1  Com.  379.  What 
ai;ts  make  a  person  liable  is  a  question  of  law;  whether  proved  or  not  is 
for  the  consideration  of  the  jury.    2  Term.  Rep.  97. 

Regularly  there  cannot  be  an  administrator  de  son  tort  when  there  is  a 
rightful  executor  or  administrator;  but  although  there  be  a  rightful  ex- 
e(!Utor  who  administered,  yet  if  a  stranger  take  the  deceased's  goods  and 
claiming  to  be  the  executor,  pays  or  receives  debts  or  pays  legacies  he 
becomes  administrator  de  son  tort.    3  Bac.  22;  1  Stark  Rep.  31. 

The  agent  of  an  executor  proved  a  debt  before  the  commissioners  of 
bankrupt  as  executor.  He  was  held  liable  as  administrator  de  son  tort. 
4  Maule  &  Selw.  111. 

If  one  as  agent  of  an  executor  take  possession  of  the  goods  of  the  de- 
C(!ased  he  is  not  chargeable  as  executor  de  son  tort.  Peake  N.  P.  Ca.  86; 
4  M.  &  S.  175;  1  Stark.  31.  (Doubtful  in  the  extent  laid  down.)  See 
also  12  Modern  441. 

16 


122  Crawford  &  Co.  vs.  Slack. 

WILLIAM  B.  CRAWFORD  &  Co.  vs.  LEWIS  SLACK. 
A  deed  takes  effect  by  the  delivery. 

Covenant.  Pleas.  First.  That  deft,  made  no  covenant  with  plff. 
Second.  That  the  supposed  covenant  in  the  narr.  mentioned  was  made 
with  Thomas  Whiteman  the  constable.  Third.  That  said  Whiteman 
seized  in  execution  certain  goods  of  jST.  Coggins  and  that  deft,  under- 
took to  be  surety  to  said  Whiteman  for  the  forth-coming  of  said  goods 
and  that  he  had  performed  his  undertaking  with  said  Whiteman. 
Reps,  and  issues. 

The  case  was  this. —  Constable  Whiteman  having  in  his  hands  seve- 
ral executions  against  Nathan  Coggins  at  the  suit  of  William  B.  Craw- 
ford &  Co.,  and  being  about  to  seize  the  goods  of  Coggins,  an  arrange- 
ment was  entered  into  that  the  deft.  Slack  should  be  security  for 
their  production  at  a  future  day  in  order  to  be  levied  on.  The  deft, 
thereupon  executed  the  following  paper.  The  agreement  was  made 
and  the  paper  executed  in  the  presence  of  Crawford  the  plff.,  but  it 
did  not  distinctly  appear  whether  the  agreement  was  made  with  Craw- 
ford or  with  the  constable.  The  paper  was  delivered  to  the  constable. 
It  was  as  follows : 

"  This  is  to  certify  that  I  am  security  for  the  forth-coming  of  all 
the.  goods  and  chattels  of  Nathan  Coggins,  on  Monday  the  27th  of 
June  next  1831;  as  witness  my  hand  and  seal  this  24th  of  June  1831. 

Lewis  Slack  [Seal.] 

Witness  A.  Bradley." 

Endorsed  —  "Demanded  the  within  goods  of  Lewis  Slack  this  27 
June  1831,  and  were  not  produced. 

Thomas  Whiteman. 

Before  A.  Bradley. 

Wm.  B.  Crawford  &  Co." 

On  this  instrument  this  suit  was  brought  and  the  narr.  counted  on 
a  covenant  with  plff. 

The  deft,  objected  to  the  reading  of  this  paper  in  evidence  as  it 
did  not  support  the  narr.  being  a  covenant  with  the  constable.  The 
plff.  contended  it  was  a  covenant  with  him. 

By  the  Court. —  The  constable  was  entitled  to  the  possession  of 
the  goods  if  any  one:  they  must  have  been  delivered  to  him  if  pro- 
duced, and  not  to  the  plff.  The  endorsement  shows  that  he  made  the 
demand  and  the  plff.  is  a  witness  to  it.  From  these  circumstances  it 
would  seem  that  the  covenant  was  in  fact  with  the  constable.  It  is 
doubtful  whether  we  can  go  out  of  the  deed  at  all  to  show  to  whom 
it  was  given;  but,  if  we  can,  it  must  be  governed  by  the  delivery 
which  was  to  the  constable.     Theobald  on  Principal  and  Surety  20. 

Paper  rejected  and  plff.  nonsuited. 

Rogers,  for  plff.    Booth,  for  deft. 


Brooks  vs.  Morgan.  123 


JOHX  POTTER,  sen.,  vs.  JOHN  HYNDMAN. 

Indentures  executed  by  the  Orphans'  Court  of  Maryland  not  sufficient  evidence 
without  the  law  authorizing  such  court  to  bind. 

Action  on  the  case  for  harboring  an  apprentice. 

Plea.    Not  guilty.    Issue. 

To  prove  the  plff's.  right  to  the  service  of  the  apprentice  the  plff. 
gave  in  evidence  an  indenture  of  apprenticeship  executed  by  the 
Orphans'  Court  of  the  state  of  Maryland  for  the  city  of  Baltimore, 
binding  the  boy  to  plff.  as  a  poor  child. 

Bayard,  for  plff.  moved  a  nonsuit. 

The  action  is  for  harboring  an  apprentice.  The  plea  puts  in  issue 
tlie  whole  declaration,  of  course  denies  the  plff's  right  to  the  servi- 
ces of  the  boy.  He  produces  an  indenture  by  the  Orphans'  Court  of 
^[aryland.  By  what  authority  did  this  court  bind  him?  Plff.  must 
either  show  a  common  law  right;  or,  if  he  goes  upon  a  statutory  right, 
he  must  show  the  statute.  The  foreign  law  on  this  subject  is  matter  of 
evidence.  The  authority  to  bind  a  boy  must  depend  on  statutory  pro- 
visions. It  is  not  a  common  law  right;  at  common  law  the  father  is 
entitled  to  the  services  of  the  boy.  T  don't  say  the  record  is  not  evi- 
dence, but  that  the  law  authorizing  the  binding  must  be  shewn. 

Hamilton,  for  the  plff.  insisted  that  the  action  of  the  court  in 
]l[aryland  on  this  subject  was  entitled  to  full  credit  and  their  juris- 
diction would  be  implied. 

By  the  Court. —  This  is  not  the  common  case  of  a  judgment  re- 
covered in  the  courts  of  another  state.  It  is  a  binding  by  the  Or- 
phans' Court  acting  under  a  peculiar  jurisdiction  given  by  statute. 
That  statute  ought  to  be  given  in  evidence  that  the  court  may  see  it 
^\  arrants  the  proceeding.    1  Ch.  PI.  223 ;  Stark.  569.  (Sed  Quere.) 

Judgment  of  nonsuit. 

Hamilton,  for  plff.    Bayard,  for  deft. 


CHRISTOPHER  BROOKS  vs.  DAVID  MORGAN. 

The  words  "  value  received  "  sufficient  statement  of  a  consideration  in  a  prom- 
ise to  pay  the  debt  of  another. 
When  the  guarantor  of  a  note  is  entitled'  to  notice  of  his  principal's  default. 

Case.    Plea.    Non  assumpst.    Issue. 

Narr.  The  first  count  was  on  a  promissory  note  from  David  Mor- 
gm  to  Christopher  Brooks  for  $71,  payable  in  six  months  and  dated 
li  Pebruary  1827.  Second  count,  indebitatus  assumpsit  for  $71, 
tlie  price  of  a  horse  and  saddle.  Third  count.  On  a  note,  Thomas 
Stevens  to  Christopher  Brooks  for  $71,  and  the  guarantee  of  David 
Morgan  in  consideration  of  the  sale  of  a  horse  and  saddle  by  Brooks 
to  Morgan.  Fourth  count.  That  Morgan  tx^ing  indebted  to  Brooks 
procured  Stevens  to  give  his  note  to  Brooks  and  in  consideration  of 
his  indebtedness  guaranteed  the  payment  of  this  note. 


124  Brooks  vs.  Morgan. 

The  note  was  as  follows: 

"  Sixty  days  after  date  I  promise  to  pay  Christopher  Brooks  $71, 
for  value  received,  with  interest  from  the  date  hereof,  February  14, 
1827.  (Signed)  Thomas  Stevens." 

Endorsed  thus: 

"  Six  months  after  date  I  do  hereby  guarantee  and  secure  to  Chris- 
topher Brooks  the  payment  of  the  within  note,  for  value  received. 
(Signed)  David  Morgan." 

The  plff.  proved  the  admission  of  Morgan  that  he  had  brought  a 
horse  and  saddle  of  Brooks  for  $71.  He  also  produced  the  record  of 
the  dilBcharge  of  Thomas  Stevens  as  an  insolvent  debtor  on  the  30 
March  1827,  on  which  occasion  Morgan  was  returned  as  a  creditor. 

Rodney,  for  the  deft,  contended  — 

That  the  plff.  ought  to  have  proved  a  demand  on  Stevens  and  notice 
to  the  deft.  That  the  insolvency  of  Stevens  was  not  an  excuse  for  the 
want  of  notice.  That  this  guarantee  was  within  the  statute  of  frauds 
and  without  consideration.  In  a  promise  to  pay  the  debt  of  another 
the  consideration  of  the  agreement  must  be  expressed  in  writing. 
The  legal  meaning  of  the  word  "  agreement "  embraces  the  considera- 
tion as  well  as  the  promise.  The  words  "  value  received  "  do  not  con- 
stitute a  statement  of  the  consideration  of  the  agreement.  2  H.  Bl. 
609;  1  Barn.  &  Ores.  11;  8  Com.  Law  Rep.  8;  9  Mass.  Rep.  316;  2 
Doug.  516 ;  Digest  89 ;  5  East  110. 

Rogers  for  plff. 

The  real  nature  of  this  transaction  is  that  Stevens  was  not  indebted 
to  Brooks  but  was  indebted  to  Morgan,  and  Morgan  being  indebted 
to  Brooks,  Stevens  gives  his  note  to  Brooks  in  payment  of  his  debt  to 
Morgan,  which  note  Morgan  guarantees.  The  evidence  shows  that 
Morgan  bought  a  horse  and  saddle  of  Brooks  for  the  sum  embraced  in 
this  note.  It  is  therefore  not  an  agreement  to  pay  the  debt  of  an- 
other. But,  if  treated  as  such,  the  agreement  is  in  writing  and  the 
consideration  of  it  is  sufficiently  expressed.  "  For  value  received." 
Moreover  it  is  a  promissory  note,  which  legally  imports  a  considera- 
tion. The  demand  and  notice  was  not  necessary.  It  is  not  the  case 
of  an  indorser  whose  undertaking  is  merely  a  conditional  one.  This 
is  a  general  and  absolute  undertaking. 

Chief  Justice  Clayton  charged  the  jury. 

First.  It  is  contended  that  this  is  a  guarantee  by  the  defendant  of 
a  note  from  Stevens  to  plff.  Generally  speaking,  the  guarantor  has  a 
right  to  require  that  payment  should  be  demanded  of  the  principal 
and  to  be  notified  of  such  demand.  An  exception  is  where  there  is 
an  insolvency  of  the  original  promissor.  Morgan  had  notice  of  the 
insolvency  of  Stevens  which  was  before  the  note  was  due. 

Second.  Is  this  a  collateral  undertaking?  In  a  promise  to  pay  the 
debt  of  another,  the  consideration  of  the  promise  as  well  as  the  agree- 
ment itself,  must  be  in  writing.  The  case  cited  from  East  is  right. 
But  here  it  is  stated  that  this  guarantee  was  for  "  value  received  " 
and  this  is  a  sufficient  statement  of  the  consideration,  at  least  to  throw 
the  proof  of  want  of  consideration  on  the  other  side.    Parol  evidence 


» 


Erwin  vs.  Lamborn.  125 

might  be  admitted  of  the  nature  of  this  consideration.    Theobald  on 
Frin.  &  Surety  8. 

The  plflf.  had  a  verdict  for  $95  70. 

Rogers,  for  plff. 
Rodney,  for  deft. 


JOHN  ERWIN  IS.  CYRUS  LAMBORN. 

The  guarantor  of  a  note  is  entitled  tx)  notice  of  his  principal's  default  to  pay  it. 
Insolvency  of  the  principal,  excuses  the  notice. 

The  party  may  write  over  a  blank  indorsement  any  promise  consistent  with 
the  nature  of  the  transaction. 

Case.  Pleas,  non  assumpsit;  payment  and  discount;  replications 
a  ad  issues. 

The  action  was  brought  on  the  following  note  and  indorsement. 

Wilmington,  2Qth  April  1825. 
$462  75 

Sixty  days  after  date,  I  promise  to  pay  to  John  Erwin 
or  order  $462  75  without  defalcation,  for  value  received. 

(Signed)     ELI  LAMBORN. 

This  note  was  indorsed  in  llanTc  by  Cyrus  Lamborn,  and  plff.  wrote 
over  this  blank  indorsement  these  words:  "In  case  the  debt  within 
mentioned  is  not  paid  by  Eli  Lamborn  within  named,  at  the  time  it  is 
payable,  I  promise  to  pay  the  same  to  John  Erwin.    26th  April  1825." 

The  proof  in  the  cause  established  that  Eli  Lamborn  being  indebted 
to  Erwin,  drew  his  note  dated  24th  Feb.  1825,  at  sixty  days  in  favor  of 
Cyrus  Lamborn,  which  C}tus  indorsed  to  Erwin.  At  the  maturity  of 
lliis  note  it  was  cancelled,  and  the  present  note  given.  It  was  also 
proved  that  Eli  Lamborn  died  about  September  1825,  and  that  his 
estate  was  insolvent. 

Hamilton  for  the  plff.  contended. 

That  the  alteration  in  the  form  of  the  security  when  this  note  was 
substituted  for  the  first  was  a  fraud  on  Erwin.  That  being  made 
payable  to  Erwin  and  indorsed  by  Cyrus  Lamborn  it  was  not  nego- 
ciable,  nor  did  Cyrus  stand  in  the  character  of  an  indorser,  but  in 
tliat  of  a  general  guarantor.  This  is  the  effect  of  the  indorsement, 
and  where  a  person  puts  his  name  on  the  back  of  a  note  not  nego- 
ciable  or  payable  to  bearer,  the  holder  may  write  over  this  blank  in- 
dorsement a  guarantee  or  promise  to  pay,  and  the  guarantor  is  equal- 
ly bound  with  the  maker,  being  a  joint  promissor.  This  may  be 
done  either  before  or  at  the  trial.  13  Jolins.  Rep.  175;  11  Mass.  Rep. 
436,  440;  9  ditto  316;  2  Doug.  516. 

He  also  cited  the  case  of  Henry  and  Marim  vs.  Joseph  Shallcross, 
where  this  point  was  decided  in  our  Court  of  Appeals  on  appeal  from 
tlie  Supreme  Court,  1799.  Here  the  note  was  drawn  by  Thomas 
Shallcross  to  plffs.,  and  indorsed  in  blank  by  deft.  And  the  court  said 
it  amounted  to  a  general  engagement  to  be  Responsible  in  case  of  non- 
payment by  the  maker. 


126  State  use  of  Jewell  vs.  Porter. 

Latimer  and  Read,  Jr.,  for  deft.,  insisted  that  this  was  only  a  con- 
ditional engagement,  and  did  not  warrant  the  agreement  which  plff. 
had  written  over  deft's.  signature.  A  negociable  note  was  given  in  the 
first  place  from  E.  Lamborn  to  C.  Lamborn,  and  by  him  indorsed  to 
Erwin.  The  renewal  of  the  note  was  the  same  transaction,  but  it  was 
made  payable  to  Erwin  probably  by  mistake.  No  evidence  that  the 
parties  intended  to  change  the  nature  of  the  security,  or  that  C.  Lam- 
born consented  to  change  his  responsibility  as  an  indorser  for  that  of 
a  guarantor  generally.  As  an  indorser  he  was  entitled  to  demand  and 
notice,  for  the  want  of  which  he  is  discharged.  The  privilege  of  writ- 
ing over  a  blank  indorsement  is  confined  to  negociable  paper,  and  the 
engagement  overwritten  must  always  be  consistent  with  the  nature  of 
the  transaction.  This  is  a  violation  of  the  original  contract.  14  Mass. 
Rep.  279 ;  5  8erg.  &  Rawle  363 ;  3  Bin.  126 ;  8  Com.  Law  Rep.  8. 

But  admitting  deft,  to  stand  in  the  condition  of  a  guarantor,  the 
plff,  should  have  proved  a  demand  on  Eli  and  notice  to  him.  If  in- 
solvency excuses  the  demand  and  notice  it  must  be  proved.  It  is  not 
here  proved.  The  proof  of  an  insolvency  in  September  1825  does  not 
establish  an  insolvency  in  June  1825,  when  this  note  fell  due. 

Hamilton,  for  plff.  replied,  that  even  an  indorser  was  not  entitled  to 
notice  when  the  drawer  was  insolvent;  and  it  was  not  necessary  to 
prove  an  actual  insolvency.  The  privilege  of  writing  over  a  blank  in- 
dorsement is  not  confined  to  negociable  paper.    8  Com.  Law  Rep.  8 

Chief  Justice  Clayton  charged  the  jury  to  this  effect : 

That  if  they  thought  this  note  a  continuation  of  the  old  transaction, 
and  the  parties  did  not  intend  to  change  the  nature  of  the  security, 
but  that  the  note  was  made  payable  to  Erwin  by  mistake,  the  plff.  could 
not  recover,  as  no  demand  and  notice  were  proved. 

That  if  the  jury  should  think  the  parties  intended  to  change  the 
nature  of  the  security,  the  effect  of  this  note  and  indorsement  would 
be.  to  make.  Cyrus  Lamborn  a  general  surety  or  guarantor,  and  the 
plff.  would  be  entitled  to  write  over  his  blank  indorsement  a  promise 
consistent  with  this  new  form  of  obligation.  But  as  a  guarantor 
deft,  was  entitled  to  notice  of  Eli  Lamborn's  default  to  pay  unless 
an  insolvency  is  proved,  which  will  excuse  the  want  of  notice.  Brooks 
vs.  Morgan,  ante  123. 

The  deft,  had  a  verdict. 

Hamilton  for  plff.    Latimer  and  Read,  Jr.,  for  deft. 


STATE,  use  of  K.  JEWELL  vs.  ROBERT  PORTER. 

A  constable  is  bound  to  use  reasonable  diligence  in  the  execution  of  process. 
^Vhat  is  due  diligence  in  making  a  levy. 

Debt  on  constable's  bond. 

This  was  an  action  against  the  deft,  as  surety  in  a  constable's  bond 
for  the  negligence  of  the  constable.     The  plff.  had  obtained  a  judg- 


Khodes  vs.  Silvers.  127 

ment  against  J.  F.  Clement  for  $50,  and  he  issued  an  execution  on 
the  9th  October  1829,  and  delivered  it  to  J.  C.  Allen  constable,  who 
jieglected  to  levy  it  until  the  3rd  of  November.  On  the  2nd  Nov. 
an  execution  issued  against  Clement  at  the  suit  of  John  Gordon 
which  took  all  his  property,  and  Jewell  lost  his  debt. 

The  only  question  was,  whether  the  constable  had  used  due  dili- 
gence in  levying  this  execution. 

The  Court  charged  the  jury, 

That  it  was  the  duty  of  the  constable  to  levy  on  execution  process 
placed  in  his  hands  as  speedily  as  he  reasonably  can  do  so:  and  if 
iTom  his  neglect  the  debt  is  lost,  he  and  he  sureties  are  liable.  What 
would  constitute  reasonalale  diligence  must  depend  on  the  circum- 
stances of  each  case.  That  the  jury  must  apply  the  proof  to  this  rule, 
and  say  if  the  constable  in  this  case  did  "  well  and  diligently  "  execute 
this  process. 

The  jury  found  a  verdict  for  the  defendant ;  but  the  court,  without 
liesitation,  set  it  aside  and  granted  a  new  trial. 

Bayard  for  plff.    Wales  for  deft. 


SAMUEL  STEVENS  vs.  JOHN  A.  MONGES. 
Assumpsit  will  lie  for  a  fee  due  to  counsel. 

Assumpsit  for  a  counsel  fee.    Plea,  non-assumpsit;  issue. 

The  question  was  raised  in  this  case  whether  an  action  would  lie 
for  a  fee  due  to  counsel. 

The  Court  said  they  had  no  doubt  that  counsel  could  in  this  state 
8ue  for  a,nd  recover  their  fees.  It  has  been  the  invariable  practice  to 
treat  them  as  legal  demands,  though  no  case  has  occurred  in  which 
ihe  question  has  been  expressly  decided.  We  recognize  the  payment 
of  such  fees  by  executors,  administrators  and  guardians,  whenever 
Ihey  come  up  incidentally:  and  the  Chancellor  frequently  makes  a 
direct  allowance  of  them.  In  England  physicians  stand  on  the  same 
ground  with  counsel,  their  fees  being  treated  as  honoraria,  yet  phy- 
sicians' bills  have  always  been  sued  on  here  even  before  the  passage  of 
our  act  of  assembly  which  recognizes  them  as  legal  demands. 

The  counsel  mentioned  a  case  lately  decided  by  Judge  Hall  in  the 
IDistrict  Court  of  this  district,  where  Mr,  Wirt  sued  for  a  fee  and  re- 
covered. 

Verdict  for  plff. 

Bayard  for  plff.    Read,  Jr.,  for  deft. 


GEOKGE  EHODES  vs.  WILLIAM  SILVERS. 

•  malicious  prosecution  plff.  must  prove  the  prosecuti 
want  of  probable  cause  and  malice  of  deft. 

Case,  for  malicious  prosecution.    Plea,  non  cul ;  issue. 


la  case  for  malicious  prosecution  plff.  must  prove  the  prosecution,  acquittal, 
want  of  probable  cause  and  malice  of  deft. 


128  Bennington  vs.  Parkin's  Adm'r. 

This  was  an  action  for  a  malicious  prosecution  instituted  by  the 
deft,  against  the  plff.  before  justice  Faris,  for  a  violation  of  the  Sab- 
bath day.  Upon  this  charge  the  deft,  obtained  a  state's  process, 
against  Rhodes,  and  had  him  arrested  under  circumstances  of  great 
outrage.  The  charge  was  founded  upon  the  act  of  assembly  of  this 
state.    Digest  483. 

Harrington  Justice,  charged  the  jury  that  it  was  incumbent  on  the 
plfE.  to  prove  the  prosecution  commenced  and  conducted  at  the  instiga- 
tion of  the  deft. ;  the  termination  of  that  prosecution  in  favor  of  the 
accused;  the  want  of  probable  cause  for  the  prosecution,  and  the 
malicious  motive  of  the  deft. 

That  the  damages  were  in  the  discretion  of  the  jury,  and  should  be 
proportioned  to  the  damage  the  plff.  had  sustained,  and  the  aggrava- 
tion of  the  case  by  the  very  violent  means  made  use  of  in  the  arrest 
and  detention  of  the  accused.  Some  legal  damage  must  be  made  out ; 
but  the  arrest  of  the  person,  or  his  detention  however  short,  and  the 
expense  incurred  by  the  accused  in  consequence  of  the  accusation^ 
should  be  considered  in  fixing  the  amount  of  the  damages. 

The  jury  gave  a  verdict  for  $122  00 


JOHN  BENNINGTON  vs  JOHN  PAEKIN'S  Adm'r. 

A  promise  by  an  administrator  wilt  revive  a  debt  barred  by  limitation 
Surety  in  an  administration  bond  is  a  witness  in  an  action  against  the  ad- 
ministrator, where  there  is  no  suggestion  of  a  devastavit. 

Case.  Pleas,  non-assumpsit,  payment  and  discount,  and  the  act 
of  limitations ;  issues. 

Bennington  and  Parkin  were  both  Englishmen.  Bennington  emi- 
grated to  this  country  in  1819,  and  Parkin  accompanied  him  to  Liver- 
pool, from  which  port  he  sailed.  He  had  a  sum  of  £400  deposited  ia 
the  Burlington  banking  house,  drawing  an  interest  of  5  per  cent.  On 
embarking  he  placed  the  certificate  of  deposit  in  Parkin's  hands,  ta 
be  delivered  to  a  certain  Wm.  Robson,  with  directions  to  let  the  money 
remain  in  bank  until  he  should  write  to  Robson  for  it.  He  also  sent 
by  Parkin  a  check  to  enable  Robson  to  draw  the  money  when  he  should 
write  to  him  for  it.  Parkin,  instead  of  delivering  the  certificate  and 
check  to  Robson,  drew  the  money  out  of  bank.  He  also  afterwards, 
came  to  this  country  and  died,  leaving  a  widow  the  present  deft.,  who- 
is  administratrix.  After  the  death  of  her  husband  Mrs.  Parkin  re- 
turned to  England,  where  the  plff.  followed  her,  and  obtained  from 
Parkin's  executors  in  England,  payment  of  £100  in  part  of  his  claim. 
Mrs.  Parkin  returned  to  America ;  the  plff.  followed  shortly  after,  and 
now  brought  this  suit  for  the  balance.  There  had  been  repeated  ac- 
knowledgments of  the  debt  in  Parkin's  lifetime,  and  he  always  prom- 
ised pajrment.  In  1820  Parkin  gave  Bennington  a  letter  to  Richard 
Lovel  in  England,  directing  Lovel  to  deliver  Bennington  the  money 
and  securities  which  were  left  in  his  hands  to  pay  the  £400,  as  per  ac- 
count sent  from  Liverpool  by  his  brother  Wm.  Parkin.     He  died 


Bennington  vs.  Parkin's  Adm'r.  129 

in  April  1826.  After  his  death  Mrs.  Parkin  wrote  to  the  executors  in 
England  to  pay  Bennington,  but  they  had  not  funds  beyond  the  £100, 
which  they  paid.  In  May  1830,  Mrs.  Parkin  entered  into  a  refe- 
rence with  Bennington.  She  agreed  before  the  referees  to  pay  the 
balance  of  £300,  but  refused  to  pay  any  interest.  The  referees  could 
not  agree  on  a  report.    This  suit  was  brought  in  May  1830. 

Bayard  for  deft,  moved  a  nonsuit,  on  the  ground  that  the  plff. 
had  himself  shown  a  case  barred  by  the  act  of  limitations. 

The  old  limitation  act  of  1792,  2  Del.  Laws  1033,  and  not  that 
of  1829,  applies  to  this  case.  The  latter  repeals  the  former  law  "  ex- 
cept so  far  as  shall  concern  any  action,  cause  of  action  or  matter  which 
now  is  or  on  or  before  the  1st  day  of  September  next  shall  be  barred 
according  to  the  form  or  effect  of  the  aforesaid  acts  or  sections,  or 
either  of  them :  "  7  Del.  Lavjs  271 ;  Digest  397.  Before  September 
1829  this  action  was  barred;  and  it  cannot  be  revived  by  the  promise 
of  the  administratrix.  It  was  decided  in  the  case  of  Sykes  vs.  Cooper's 
Ex'r.  in  Kent  county,  that  the  admission  of  an  administrator,  could 
not  take  a  case  out  of  the  statute,  and  such  has  been  the  uniform  de- 
cisions of  our  courts. 

Rogers  for  plff. 

This  is  purely  a  case  of  trust  to  which  the  act  of  limitations  does 
not  apply.  The  check  was  placed  in  Parkin's  hands  in  trust,  to  be 
delivered  to  Wm.  Robson.  It  is  a  case  too  of  express  trust  admitted 
by  Parkin. 

But  the  law  of  1829  and  not  that  of  1792,  applies  to  this  case. 
This  suit  was  commenced  in  1830.  The  rule  that  a  promise  by  an 
administrator  would  not  take  a  case  out  of  the  act  of  limitations  was 
founded  in  the  peculiar  wording  of  the  act  of  1792.  It  is  different 
from  the  English  law,  and  contrary  to  what  was  understood  to  be  the 
law  here  before  the  passing  of  that  act.  But'  the  act  of  1829  is  dif- 
ferent, and  as  we  contend  restores  the  law  to  what  it  was  before.  The 
effect  of  the  old  act  in  this  respect  was  only  incidental;  its  repeal 
must  leave  the  law  as  it  stood  before. 

Bayard,  in  reply. 

AVhere  a  party  sues  in  a  court  of  law  he  must  be  bound  by  the  rules 
of  law.  Courts  of  law  know  nothing  about  trusts  as  such.  If  this  be 
a  case  of  trust  the  remedy  is  in  equity  and  not  here.  Denies  the  ap- 
plication of  the  law  of  1829. 

By  the  Court. —  It  has  heretofore  been  decided,  under  the  existing 
laws  of  the  state,  that  the  promise  of  an  administrator  would  not  take 
a  case  out  of  the  statute  of  limitations.  This  decision  was  founded 
on  a  construction  of  the  5th  section  of  the  act  of  1792,  which  prohibits 
an  administrator  from  paying  a  debt  barred  by  limitation,  the  courts 
held  that  it  would  be  an  evasion  of  this  section  to  allow  the  promise 
of  an  administrator,  to  revive  a  debt  which  he  could  not  legally  pav. 
That  law  is  repealed ;  and  we  apprehend  that  as  the  law  now  stands, 
the  promise  of  an  administrator  may  take  a  case  out  of  the  statute. 
A  promise  of  this  administratrix  has  been  proved  since  the  repeal  of 
that  act,  and  the  question  is  what  is  the  effect  of  that  promise  at  the 
time  it  is  made  ?    It  is  of  fhe  same  force  as  i'f  made  by  the  intestate 

17 


130  Bennington  vs.  Parkin's  Adm'r. 

himself.  Thus,  whether  the  act  of  1792  or  of  1829  applies  to  this 
case  as  it  rewards  the  limitation  of  action  it  is  totally  immaterial,  if 
the  general  law  gives  to  the  promise  of  an  administratrix  the  effect  of 
reviving  a  debt.  Being  of  opinion  that  it  has  this  effect  we  refuse  the 
nonsuit. 

Whereupon  an  exception  was  prayed  and  granted. 

The  deft,  then  went  on  with  his  case  and  called  Christopher  Bain- 
ton;  who  was  objected  to,  he  being  the  surety  of  the  deft,  in  her  ad- 
ministration bond. 

Rogers. —  There  is  no  plea  of  plene  administravit,  and  if  there  be 
a  recovery  in  this  case,  this  witness  is  personally  responsible  as  su- 
rety whether  there  be  assets  or  not.  If  the  assets  have  been  wasted 
he  will  undoubtedly  be  liable.  Phil.  Evid.  49;  3  Com.  Law  Rep. 
139,  235. 

Bayard. —  The  administratrix  herself  would  be  liable  for  any  re- 
covery in  this  action,  whether  there  be  assets  or  not,  but  not  so  the 
surety,  unless  a  devastavit  be  shown.  The  court  will  not  presume 
a  devastavit.  This  is  not  like  the  case  of  special  bail — the  witness 
cannot  be  affected  by  the  result  of  this  suit.     7  Term  Rep.  6. 

The  Court. — The  witness  must  be  sworn.  He  is  not  directly  in- 
terested in  the  event  of  this  suit,  nor  will  a  decision  here  against  the 
deft,  fix  any  liability  on  the  part  of  the  surety.  He  is  only  bound 
for  the  application  of  the  assets  received.  Whether  they  be  applied 
to  this  claim  or  that,  is  of  no  importance  to  him.  The  question  of  a 
devastavit  is  not  to  be  decided  in  this  case.  It  is  true,  that  the  ver- 
dict in  this  cause  for  plff.  would  fix  the  administratrix  to  the  amount, 
whether  there  be  assets  or  not,  there  being  no  plea  of  plene  adminis- 
travit. It  amounts  to  an  admission  of  assets  on  her  part;  but  it  does 
not  preclude  the  surety ;  and,  in  an  action  on  the  administration  bond, 
he  may  dispute  the  assets.  The  rule  is  that  the  witness  must  be  in- 
terested in  the  event  of  the  suit  or  in  the  record;  that  is,  where  the 
record  may  be  given  in  evidence  in  another  suit  either  for  or  against 
him.     Otherwise  he  is  a  competent  witness. 

Judge  Robinson  charged  the  jury: 

First.  That  the  plff.'s  action  was  not  barred  by  limitation.  Sec- 
ond. That  if  the  certificate  of  deposit  was  placed  in  Parkin's  hands 
to  deliver  to  Robson  and  he  failed  to  do  so,  it  was  a  breach  of  trust; 
and,  if  he  drew  the  money,  he  was  liable  to  the  plff.  in  this  action. 
Third.  That  the  delay  or  negligence  of  Bennington  to  present  the 
order  given  to  him  in  1820  by  Parkin  on  Richard  Lovel,  was  not  a 
bar  to  this  suit  as  there  were  no  funds  in  Level's  hands,  and  the 
claim  had  been  ratified  by  subsequent  promises.  That  was  not  a  bill 
of  exchange,  nor  partook  of  any  of  the  qualities  of  a  bill  of  exchange. 
It  was  a  mere  letter  of  advice,  but  available  as  an  acknowledgment 
of  the  debt.  Fourth.  That  the  interest  and  damages  were  in  the 
discretion  of  the  jury. 

The  plff.  had  a  verdict  for  $2,645  16. 

Rogers,  for  plff.  

J.  A.  Bayard,  for  deft.    i^^Vide  post,  page. 


SUPERIOR  COURT, 

SPEING  SESSIONS, 

1833. 


BENJAMIN  FOOKS  vs.  WILLIAM  D.  WAPLES. 

In  an  action  on  the  case  for  recommending  a  person  as  fit  to  be  trusted  when 
in  fact  he  was  insolvent,  the  knowledge  of  his  insolvency  as  well  as  the 
fraudulent  intent,  must  be  proved. 

Capias  case.     Narr.  Plea,  Not  guilty.     Issue. 

This  action  was  brought  against  Wm.  D.  Waples  for  recommend- 
ing a  certain  Thomas  E.  Waggoman  to  plff.,  as  a  person  fit  to  be 
trusted  when  in  fact  he  was  insolvent.  Plff.  on  this  recommenda- 
tion trusted  him  for  a  gig  and  harness,  the  price  of  which  he  lost. 
The  plff.  is  a  gig  and  harness  maker  in  Sussex  county.  In  May 
1830,  a  stranger  presented  himself  with  the  following  letter  of  intro- 
duction : 

Millshorough,  Del.,  May  13,  1830. 
Mr.  Benjamin  Fooks. 

Dear  Sir, — Allow  me  to  introduce  to  you  Mr.  Waggoman,  of  the 
city  of  Washington,  as  a  gentleman  in  whom  you  may  rely.  I  do 
aot  hesitate  to  say  that  Mr.  Waggoman  will  promptly  comply  with 
any  engagements  that  he  may  enter  into  with  you.  He  will  explain 
to  you  the  nature  of  his  calling  on  you,  &c.  Any  attention  you  can 
give  him  will  be  thankfully  received  by  vour  friend,  &c. 

WM.  D.  WAPLES. 

On  this  recommendation  Fooks  sold  Waggoman  a  gig  and  harness 
on  a  credit,  and  took  his  note  for  the  price.  The  testimony  showed 
that  Thomas  E.  Waggoman  was  insolvent  in  1830,  and  generally 
known  about  Washington  to  be  so,  though  he  had  formerly  been  a 
man  of  fortune  and  made  a  great  show.  He  is  now  dead  and  Fooks 
has  made  sundry  ineffectual  attempts  to  collect  the  note. 

The  plff.  closed;  and 

J.  M.  Clayton  for  deft.,  moved  a  nonsuit  on  these  grounds:  First. 
That  plff.  had  not  proved  any  recommendation  of  Thomas  E.  Wag- 
goman. The  identity  between  the  Thomas  E.  Waggoman  who  is 
proved  to  have  been  insolvent,  and  the  Mr.  Waggoman  mentioned 
in  the  letter,  is  not  established.  It  may  be  that  the  person  recom- 
mended was  the  present  senator  in  congress,  Mr.  Waggoman,  who 


132  FooKs  vs.  Waples. 

is  the  brother  of  Thomas  E.  Waggoman.  Second.  The  plfE.  has  not 
shown  the  fraudulent  intention  of  Waples,  which  is  the  gist  of  this 
action.  Every  count  alledges  the  fact  "  falsely  and  fraudulently " 
and  must  so  alledge,  for  without  a  fraudulent  intent  there  is  no  cause 
of  action.  2  East  92,  Haycraft  vs.  Creasy.  There  is  no  proof  in 
the  case  whatever  of  such  intent;  and  this  must  appear. 

E.  D.  Cullen,  in  support  of  the  motion : 

Fraud  cannot  be  presumed,  but  must  be  proved.  2  East  92. 
Orose  J.     There  must  be  evidence  of  fraud. 

A  misrepresentation  without  interest  or  fraud  will  not  support  an 
action.     7  Cranch  69,  96. 

The  narr  alledges  that  Waples  recommended  Waggoman  knowing 
him  to  be  insolvent;  there  is  no  evidence  here  whatever  of  the 
scienter,  and  the  plff.  must  fail  for  want  of  it. 

Mr.  Attorney  General  Frame: 

What  is  the  plff.  bound  to  prove?  First,  that  deft,  recommended 
Thos.  E.  Waggoman  to  the  plff.  as  a  man  fit  to  be  trusted;  secondly, 
with  a  fraudulent  intent,  and  thirdly,  with  a  knowledge  that  the 
recommendation  was  false.  On  this  assumption  the  declaration  states 
that  he  recommended  Thos.  E.  Waggoman;  the  letter  introduces 
and  recommends  a  Mr.  Waggoman,  and  there  is  no  evidence  to  con- 
nect them.  It  is  very  true  that  the  plff.  was  not  bound  to  set  out  the 
recommendation  by  its  tenor,  but  this  is  matter  of  fact,  and  however 
set  out,  it  must  be  proved  that  the  deft,  recommended  the  person  al- 
ledged. 

Second.  The  fraudulent  intent  must  be  proved,  and  thirdly,  the 
scienter  must  also  be  proved.  The  deft,  must  know  the  falsity  of 
his  statement  and  make  it  with  a  view  to  defraud.  Fraud  is  the  gist 
of  the  action.  1  Selw.  N.  P.  483;  Salk.  211;  2  Chitty  Plead.  317; 
2  Saund.  Plead,  and  Evid.  527. 

Prior  to  the  case  of  Pasley  and  Freeman,  the  courts  never 
charged  any  one  not  a  party  to  the  conti*act.  In  that  case,  it  was 
extended  to  the  fraudulent  misrepresentations  of  a  third  person  know- 
ing the  falsity  of  his  statement.  3  Term  Rep.  56.  It  is  necessary 
to  establish  both  falsity  and  fraud,  i.  e.,  the  knowledge  of  the 
falsity;  it  must  appear  that  deft,  intended  to  impose  on  the  plff.  1 
Harrison's  Digest  297.  There  is  not  a  particle  of  proof  here  that 
Waples  designed  to  cheat  Fooks  or  knew  of  the  insolvency  of  Wag- 
goman. 

E.  W Gotten  and  J.  A.  Bayard,  for  plff. 

Questions  of  fact,  are  for  the  jiiry :  of  law,  for  the  court.  This  is 
a  question  of  fact.  The  declaration  sets  out  the  letter  bv  substance 
and  not  by  its  tenor.  That  a  certain  individual  named  Thomas  E. 
Waggoman  was  introduced,  &c.  The  letter  speaks  of  Mr.  Waggo- 
man, and  the  identity  may  be  proved  aliunde.  It  is  for  the  jury  to 
eay  on  the  evidence  if  this  has  been  proved.  Second.  The  fraud  and 
the  scienter  are  also  to  be  established  by  evidence,  and  found  by  the 
jury.  It  is  fraud  in  fact,  not  legal  fraud ;  and  it  is  for  the  jurv  to 
say  whether  we  have  proved  it.  In  Haycraft  and  Creasy,  2  East 
92,  the  court  left  the  casp  to  the  jurv  solely  in  the  falsity  of  the  rep- 
resentations. It  was  on  this  ground  that  the  judgment  was  arrested. 
The  case  in  Cranch,  was  in  equity,  and  can't  prove  that  a  court  of 


FooKS  vs.  Waples.  133 

law  and  not  the  jury,  are  to  try  the  facts  of  the  case.  Here  was  a 
man  whose  circumstances  were  notoriously  insolvent;  known  person- 
ally to  Waples  but  not  to  the  plff.  Waples  introduces  and  recom- 
mends him  as  a  person  entitled  to  credit.  Is  not  this  evidence  of 
fraud?  In  the  cases  cited,  the  apparent  circumstances  of  the  party 
recommended  supported  the  recommendation,  and  there  was  reason 
in  requiring  proof  that  he  knew  his  real  circumstances  were  differ- 
<3nt.  A  man  who  recommends  another  is  presumed  to  know  at  least 
his  ostensible  circumstances ;  if  these  are  in  fact  bad  it  is  evidence  of 
fraud,  which  the  jury  ought  to  try.  The  recommendation  supposes 
a  personal  knowledge;  and  a  personal  knowledge  involves  a  knowl- 
edge of  apparent  circumstances  and  standing.  Fraud  has  been  pre- 
sumed from  the  suppression  of  a  fact  within  the  knowledge  of  the 
party.  And  it  can  only  be  made  out  by  circumstances  which  the 
jury  ought  to  weigh.     We  therefore  resist  the  motion.     4  East  318. 

J.  M.  Clayton,  for  deft,  in  reply. 

IThe  plff.  must  prove  fraud  in  fact :  both  the  falsity  and  the  scien- 
ter. The  fraud  is  a  conclusion  of  law  on  the  facts.  3  StarTcie  468. 
First.  The  narr  only  sets  out  substance;  true,  but  that  substance  is 
that  Waples  recommended  Thos.  E.  Waggoman.  Is  this  proved? 
That's  the  question.  We  don't  deny  that  the  Mr.  Waggoman  of 
the  letter  may  be  connected  with  the  Thos.  E.  Waggoman  of  the 
narr  by  evidence,  but  where  is  that  evidence.  If  there  be  no  evi- 
dence of  their  identity,  we  are  entitled  to  a  nonsuit.  Second.  Is  the 
scienter  proved?  The  fraud  is  founded  upon  the  scienter  but  does 
not  necessarily  arise  out  of  it;  therefore  both  must  be  shown.  What 
evidence  has  been  offered  for  this  purpose  ?  The  gentleman  says  the 
letter  itself  proves  the  knowledge.  That  is  to  say,  you  prove  the 
knowledge  of  insolvency  from  a  representation  of  solvency.  If  this 
be  true,  all  the  law  requiring  proof  of  a  scienter  is  folly.  In  the 
case  from  Cranch,  the  recommendation  is  very  like  this,  yet  it  did 
not  occur  to  Chief  Justice  Marshall,  that  the  letter  proved  the  knowl- 
edge. And  the  scienter  of  the  real  as  well  as  the  ostensible  circum- 
stances must  be  brought  home  to  the  deft.  Here  was  a  man  resid- 
ing in  Washington  city ;  a  public  officer ;  who  had  been  as  it  is  proved 
not  only  apparently  but  really  in  affluent  circumstances;  known  as 
such  by  Col.  Waples;  he  becomes  insolvent  and  here  at  a  distance 
from  home,  where  a  knowledge  of  his  reverse  of  fortune  had  not 
reached,  he  applies  to  Col.  Waples  to  introduce  him  to  a  coachmaker. 
The  doing  so  may  have  been  incautious,  imprudent;  but  are  you  to 
infer  that  Waples  was  guilty  of  a  fraud ;  and  to  make  out  this  fraudu- 
lent intent,  to  infer  also,  that  he  knew  of  the  changed  fortunes  of  this 
man  whom  he  no  doubt  innocently,  though  perhaps  imprudently, 
recommended  ?  Such  is  not  the  doctrine  of  the  books.  The  fraud 
must  be  proved  and  the  knowledge  must  be  proved.  The  case  in 
East  goes  on  the  same  principle :  fraud  was  proved  in  that  case,  and 
gross  fraud.  The  deft,  stated  that  the  person  recommended,  had  a 
large  credit  m  a  certain  house,  without  stating  the  fact,  which  he 
knew,  that  this  credit  was  founded  on  a  previous  deposit  of  goods  to 
treble  the  amount. 

Mr.  Bayard  argues  from  the  case  in  2  East,  because  the  court 
said  they  would  arrest  the  judgment,  and  send  the  case  to  another 


134  Waples  vs.  Derrickson. 

jury ;  that  they  would  not  have  granted  a  nonsuit.  How  could  they 
do  otherwise  ?  After  verdict,  the  case  must-  go  to  another  trial  if 
the  judgment  is  arrested ;  but  it  does  not  follow  that  the  court  would 
not  order  a  nonsuit  in  the  second  trial,  on  the  same  state  of  facts.  It 
is  like  every  other  case  of  a  nonsuit  for  not  proving  a  material  point, 
if  there  be  no  proof  of  it  the  court  will  interfere. 

By  the  Court. —  In  this  case  it  was  incumbent  on  the  plff.  to  prove 
that  the  deft,  made  a  false  representation  of  the  solvency  of  Waggo- 
man,  knowing  it  to  be  false,  and  with  the  intent  to  deceive  and  de- 
fraud the  plff.  The  knowledge  must  be  proved.  It  has  been  argued 
that  the  fact  of  the  recommendation  proves  a  knowledge  of  the  cir- 
cumstances. We  can't  agree  to  this  conclusion.  It  is  at  best  but  a 
mere  inference  and  too  unsubstantial  as  a  foundation  for  the  fraud 
that  is  to  be  built  upon  it.  The  scienter  ought  to  be  proved  aliunde. 
The  evidence  in  the  cause  is  that  Waples  lived  in  this  county  and 
Waggoman  in  Washington  city.  Some  of  the  depositions  of  wit- 
nesses residing  in  Washington  hesitate  about  Waggoman's  insolvency 
in  1830,  though  the  proof  does  establish  this;  yet  there  is  not  a 
tittle  of  evidence  produced  to  show  that  Waples  knew  Waggoman's 
circumstances  either  real  or  apparent.  It  being  incumbent  on  the 
plff.  to  prove  this  knowledge  he  must  be  nonsuited. 

Judgment  of  nonsuit. 

Wootten  and  Bayard,  for  plff. 

Cullen,  Frame  and  Clayton,  for  deft. 


STATE  use  of  JOHN  ABBOTT  and  WIFE  vs.  LEVIN  STUAET^ 
administrator  of  JEHU  STOCKLEY. 

Infancy  must  be  specially  replied  to  a  plea  of  the  act  of  limitations. 

Debt  on  a  testamentary  bond. 

Pleas  —  "  Plene  administravit ;  performance,  and  the  act  of  limita- 
tions."    Eeplications  and  issues. 

The  plff.  offered  to  prove  the  infancy  of  Mrs.  Abbott  to  rebut  the 
plea  of  the  statute  of  limitations,  but  it  was  objected  to  and  insisted 
that  he  ought  to  have  replied  the  infancy. 

The  Court  said  that  where  a  party  relied  on  infancy  to  prevent 
the  operation  of  the  statute,  he  must  reply  it  so  as  to  give  the  other 
side  notice. 

The  plff.  suffered  nonsuit. 

Layton,  for  plff.     Cullen,  for  deft. 


WILLIAM  D.  WAPLES  vs.  EPHRAIM  DERRICKSON. 

To  declare  in  a  diflFerent  form  of  action  from  that  in  which  the  bail  is  taken 

releases  the  bail. 

Foreign  attachment  case. 

A  rule  was  obtained  in  this  case  to  show  cause  why  an  exonereiur 


Waples'  vs.  Clark's  Adm'r.  135 

should  not  be  entered  on  the  bail  piece  on  the  ground  that  the  plflE. 
]iad  declared  in  a  different  form  of  action  from  that  in  which  bail  was 
entered.  /The  bail  was  taken  in  an  attachment  case;  the  declaration 
was  in  debt. 

The  plff.'s  counsel  referred  to  our  act  of  assembly  requiring  the 
deft,  in  an  attachment  to  put  in  bail  to  answer  any  action  that  the 
plff.  might  bring  against  him ;  and  insisted  that  this  act  controlled  the 
English  rule,  if  such  a  rule  existed  in  the  English  practice.  On  the 
other  side  it  was  said  that  the  attachment  was  merely  a  substitute  for 
personal  services  with  process,  and  the  rights  of  bail  the  same  as  at 
common  law. 

The  court  directed  the  exoneretur  to  be  entered. 

Lawton  and  Frame,  for  plff. 

Cullen  and  Bayard,  for  deft. 


ISAAC  WAPLES,  surviving  obligee  of  THOMAS  C.  WAPLES  and 
ISAAC  WAPLES  use  of  WILLIAM  D.  WAPLES  vs.  ISAAC 
CLOWS  and  THOMAS  DRAPER,  adm'rs.  of  ALETTA  CLARK, 
deceased. 

An  attorney  is  not  competent  to  contradict  his  own  entry  of  satisfaction  on  a 
judgment;  and  deny  that  the  money  was  paid. 

Judgment  opened. 

Isaac  Clows  became  the  guardian  of  John  M.  Wolfe  and  Eliza  R. 
Wolfe  and  gave  bond  with  Thomas  C.  Waples  and  John  Waples  (the 
plffs.)  as  his  sureties.  Isaac  Clows  with  Aletta  Clark  gave  to  the  said 
Thomas  C,  Waples  and  Isaac  Waples  sureties  as  afsd.  a  bond  with 
warrant  of  attorney  to  confess  judgment  in  the  sum  of  $8,000 ;  to  in- 
demnify the  said  sureties  against  their  said  suretyship.  Judgment 
was  confessed  on  this  bond  11  October  1814,  for  $8,000;  John  M. 
Wolfe  sued  the  guardian  bond  afsd.  and  recovered  judgment  against 
the  said  sureties  on  11  Oct.  1827  for  $688  90.  On  21  Jan.  1828, 
this  judgment  was  entered  "satisfied"  by  Edward  L.  Wells,  attor- 
ney for  J.  M.  Wolfe.  Thomas  C.  Waples  and  Isaac  Waples  sued 
out  a  scire  facias  on  this  judgment  of  $8,030,  entered  as  afsd.  on  the 
bond  of  indemnity  and  on  the  21  January  1830  recovered  judgment 
by  default  which  they  endorsed  for  $792  93  and  they  now  claim 
that  sum  with  interest.  This  judgment  was  opened  on  the  applica- 
tion of  the  defts.  and  the  question  on  this  trial  was  to  what  extent 
the  said  sureties  had  been  damnified. 

The  defts  counsel  now  called  Edward  L.  Wells  the  attorney  of 
John  M.  Wolfe  to  prove  that  he  had  not  received  the  whole  amount 
of  Wolfe's  judgment  for  which  he  had  so  entered  satisfaction.  This 
was  objected  to,  and  the  court  said  they  would  not  allow  Mr.  Wells 
the  attorney,  to  contradict  his  entry  on  the  record;  but  they  said  if 
the  deft,  could  prove  aliunde  that  the  Waples'  did  not  pay  the  whole 
amount  of  that  judgment  to  John  M.  Wolfe  they  might  do  it  and  by 
parol.  The  question  here  is  to  what  extent  have  plffs.  been  damni- 
fied, that  is  how  much  money  have  they  been  compelled  to  pay  on 


136  Griffith  a.nd  Wife  vs.  Johnson's  adm'h. 

account  of  their  suretyship.  The  entry  of  satisfaction  on  this  judg- 
ment shows  prima  facie  that  plffs.  paid  the  amount  of  it;  this  may 
be  rebutted  but  not  by  Wolfe's  attorney  who  entered  the  satisfac- 
tioii. 

The  pltf.  had  a  verdict  for  $926  12. 


WILLIAM  C.  GRIFFITH  and  WIFE  vs.  WILLIAM  JOHNSON, 

administrator  of  JAMES  JOHNSON,  deceased. 

Books  of  assessment  are  not  evidence  to  prove  property  or  value,  except  as 
between  the  oounty  and  the  assessed. 

Issue  from  Orphans'  Court. 

The  issue  was  to  enquire  and  ascertain  whether  the  sum  of  $438  64 
Mrs.  Griffith's  share  of  the  balance  due  from  Joseph  Sudler  the  ex- 
ecutor of  Nathan  Willey  to  the  said  James  Johnson  as  guardian  of 
the  said  Elizabeth  Griffith  "  was  lost  by  the  wilful  default  or  negli- 
gence of  James  Johnson  the  late  guardian  of  the  said  Elizabeth"  or 
whether  any  part,  &c.,  was  so  lost. 

In  order  to  prove  Sudler's  ability  to  pay  at  a  certain  period.  Lay- 
ton,  for  plff.,  offered  in  evidence  the  record  of  the  assessment  of 
Sudler's  real  and  personal  estate.  This  was  objected  to  on  the 
ground  that  the  assessment  was  res  inter  alios  acta  and  not  binding 
on  Johnson;  and  also  because  it  proved  nothing.  The  public  assess- 
ment is  only  valid  as  between  the  county  and  the  person  assessed.  It 
can't  prove  property,  nor  value.  A  life  estate  is  assessed  as  high  as 
a  fee  simple ;  lands  held  in  trust  are  assessed  to  the  trustee ;  and  fre- 
quently lands  owned  and  held  by  one  person  will  stand  for  years 
assessed  in  the  name  of  another,  a  former  owner.     2  Stark.  1330. 

The  record  was  not  admitted. 

The  plff  also  offered  a  list  of  judgments  for  and  against  Joseph 
Sudler,  made  out  and  certified  by  the  prothonotary.  Objected  to. 
Not  the  copy  of  a  record;  does  not  profess  to  be  any  such  thing. 
Mere  minutes  or  extracts  from  the  records  containing  the  names  of 
the  parties;  amounts,  &c. 

The  Court  rejected  the  evidence,  but  remarked  if  these  abstracts 
were  objected  to  it  would  be  productive  of  much  unnecessary  ex- 
pense in  furnishing  copies.  This  was  admitted  but  it  was  said  that 
it  must  be  left  as  heretofore  to  the  agreement  of  the  parties.  Cases 
might  occur  where  great  injustice  would  be  done  by  the  production 
of  these  short  memorandums  if  as  a  general  rule  they  were  regarded 
as  competent  evidence. 

The  case  went  on  to  the  jury  who  finally  found  a  verdict  in  the 
negative  of  the  issue. 

Lay  ton,  for  plff. 

Clayton,  Bayard  and  Frame,  for  deft. 


M'Caulley  vs.  M'Caulley.  137 

PKISCILLA  M^CAULLEY  vs.  ROBERT  M.  MX'AULLEY. 

'The  court  will  entertain  a  suit  for  divorce  though,  the  defendant  appears  and 
does  not  deny  the  petition. 

Petition  for  divorce. 

The  petition  stated  that  the  parties  were  married  in  February  1816. 
That  the  petitioner  at  the  time  of  her  marriage  owned  about  500 
acres  of  land  and  had  about  $500  in  cash.  That  the  respondent  has 
for  fourteen  years  past  treated  the  petitioner  with  extreme  cruelty, 
frequently  beating  her  so  as  to  endanger  her  life.  That  he  has  in- 
troduced into  his  house  an  abandoned  woman  with  whom  he  lives  in 
open  adultery;  that  he  had  taken  her  to  his  bed  in  the  presence  of 
ihe  petitioner  and  of  her  children,  compelling  her  and  them  to  lie 
on  the  floor;  that  he  has  finally  driven  petitioner  from  her  home  and 
^^he  is  now  dependent  on  charity;  and  that  he  is  doing  his  best  to 
waste  and  destroy  her  property.  Prays  the  benefit  of  the  act  of 
assembly  of  3rd  February  1832.     8  vol.  148. 

Petition  sworn  to;  copy  served  and  proved;  summons  issued  and 
served.  The  respondent  appears  by  Thomas  Robinson  his  attorney 
nnd  refuses  to  deny  the  facts  stated  in  the  petition.  This  course  was 
supposed  to  be  taken  with  a  view  to  oust  the  court  of  jurisdiction. 
See  the  peculiar  wording  of  section  second  of  the  act.  "  If  the  deft, 
shall  not  appear,  or  appearing  shall  deny  the  facts  stated,  &c.,  the 
<;ourt  shall  thereupon  proceed  to  hear  and  determine,  &c." 

The  Court  proceeded  notwithstanding  to  hear  the  case  and  the 
facts  being  fully  establshed  they  made  ithe  following  decree: 

"  And  now,  to  wit,  this  thirteenth  day  of  April  in  the  year  of  our 
Tjord  one  thousand  eight  hundred  and  thirty-three,  upon  the  hearing 
of  this  cause,  it  appearing  to  the  court  that  the  said  Robert  M. 
MTaulley  and  Priscilla  M'Caulley  were  lawfullv  married  at  the 
■fime  in  the  petition  set  forth,  and  were  and  are  lawful  husband  and 
^vife,  and  as  such  have  been  commonly  held,  reputed  and  taken  to 
he;  and  it  further  appearing  to  the  said  court,  that  the  said  Robert 
M'Caulley,  after  the  solemnization  of  the  said  marriage,  being  alto- 
gether unmindful  of  his  conjugal  vow,  did  commit  the  crime  of  adul- 
tery, and  that  he  did  also  treat  the  said  Priscilla  M'Caulley  his  wife 
with  extreme  cruelty:  it  is  therefore  considered,  adjudged  and  de- 
creed by  the  court  that  the  marriage  between  the  said  Robert  M. 
M'Caulley  and  Priscilla  M'Caulley  ought  to  be  dissolved;  and  the 
marriage  aforesaid  between  the  said  Robert  M.  M'Caulley  and  Pris- 
cilla M'Caulley  is  (according  to  the  statute  in  such  case  made  and 
j)rovided)  pronounced  and  declared  to  be  dissolved,  and  the  said  par- 
ties to  be  divorced  and  separated  accordinglv;  and  that  all  and  every 
the  duties,  rights  and  claims  accruing  to  either  of  the  said  parties  by 
reason  of  the  said  marriage  shall  henceforth  cease  and  determine.  And 
it  is  further  considered,  adjudged  and  decreed  that  the  said  Priscilla 
M'Caulley  shall  be  restored  to  all  hor  lands  and  tenements :  and  that 
€he  shall  be  further  allowed  out  of  the  real  and  personal  estate  of  the 
said  Robert  M.  M'Caullev  the  sum  of  one  hundred  dollars :  and  it  is 
also  ordered,  adjudged  and  decreed  that  the  said  Robert  M.  M'Caul- 
ley pay  the  costs  in  this  cause.'* 

18 


138  Adams'  Adm'r  vs.  Burton,  sheriff. 

JOHN  REED  vs.  HENRY  TODD. 

A  tenant  "will  not  be  permitted  to  dispute  his  landlord's  title. 
It  is  for  the  court  to  say  whether  a  tenancy  is  proved. 

Action  on  the  case  for  use  and  occupation.  Plea,  non  assump- 
sit.    Issue. 

The  deft,  rented  the  house  in  June  1828  of  one  Shrowders.  In 
January  1829  it  was  sold  by  virtue  of  a  judgment  and  execution  pro- 
cess as  the  property  of  Shrowders  and  purchased  by  Reed.  Plff. 
proved  his  title  and  repeated  recognitions  by  deft,  as  having  repairs 
done  on  Reed's  account,  &c. 

The  deft,  offered  a  paper  with  a  view  to  controvert  Reed's  title. 

Pur.  cur.  The  tenant  cannot  be  permitted  to  dispute  his  land- 
lord's title.  The  court  has  to  decide  whether  a  tenancy  be  proved; 
and  we  are  satisfied  from  the  evidence  in  this  case  that  the  defendant 
held  by  permission  of  the  plaintiff.  If  the  paper  is  offered  for  the 
purpose  of  disputing  Reed's  title,  it  is  not  competent,  as  in  our  judg- 
ment the  tenancy  is  proved. 

The  plaintiff  had  a  verdict. 

Frame  and  Clayton,  for  plff. 

Huffington,  for  deft. 


WILLIAM  E.  LOCKWOOD,  administrator  d.  b.  n.  of  JOSEPH  B. 
ADAMS  vs.  WILLIAM  BURTON,  Sheriff  of  Kent  County. 

Ooods  of  the  deceased  remaining  in  specie  are  liable  to  be  taken  in  execu- 
tion unless  they  have  been  administered  in  whole  or  in  part  by  the  payment 
of  debts. 

Replevin  for  a  negro  boy.  The  deft,  pleaded  "  property  in  Levin 
H.  Adams  as  administrator  d.  b.  n.  of  William  Brinckloe,  deceased, 
and  that  he  levied  on  the  boy  by  virtue  of  an  execution  against  Levin 
H.  Adams  administrator  de  bonis  non  of  William  Brinckloe,  at  the 
suit  of  the  Commercial  Bank,  for  the  use  &c." 

Joseph  B.  Adams  was  the  first  administrator  of  William  Brinckloe,. 
John  Adams  administered  on  his  estate,  on  whose  death  William  K. 
Lockwood  took  out  letters  de  bonis  non  on  the  estate  of  Joseph; 
while  Levin  H.  Adams  became  the  administrator  d.  b.  n.  of  the 
estate  of  William  Brinckloe.  The  property  in  question,  a  slave  valued 
at  $200  belonged  to  William  Brinckloej  and  on  his  death,  went  i^ito 
the  possession,  of  first  Doctor  John  Adams,  and  afterwards,  when 
Joseph  B.  Adams  administered,  into  his  possession.  On  the  death  of 
Joseph  the  boy  remained  in  Doctor  Adams'  family.  An  administra- 
tion account  of  Joseph  B.  Adams  administrator  of  William  Brinckloe 
settled  by  John  Adams  his  administrator,  was  offered  in  evidence  and 
rejected  as  not  relevant,  no  proof  having  been  made  that  the  boy 
was  included  in  the  inventory. 

The  deft,  had  a  verdict  under  the  charge  of  the  court  that  as 
there  was  no  proof  that  Joseph  B.  Adams  the  first  administrator  of 
William  Brinckloe  ever  paid  debts  to  the  amount  of  the  boy  or  any 


WORKNOT  USE  OF  EaRLE  VS.  MlLLEX'S  ADM'R. 


139 


part  of  his  value,  he  therefore  was  not  administered,  but  remained 
in  specie  as  the  property  of  William  Brinckloe  and  liable  to  the 
execution  at  the  suit  of  the  Commercial  Bank. 

Ridgely  and  Huffington,  for  plaintiff. 

Bates  and  Frame,  for  defendant. 


CONRAD  WORKNOT  use  of   CLAYTON   EAELE   vs.   DAVID 
MILLEN'S  Administrator. 

Facts  admitted  on  one  sci.  fa.  cannot  be  controverted  on  an  alias  sci.  fa. 
Quere  whether  the  "  Register  for  the  probate  of  wills  and  granting  letters  of 

administration "  is  a  judge,  and  as  such  authorized  by  law  to  administer 

oaths,  &c.,  generally. 

Alias  scire  facias  d.  s.  b. 

The  defendant  pleaded  First,  Payment.  Second,  Nul  tiel  record. 
Third,  that  a  fi.  fa.  issued,  was  levied  on  lands  which  were  found 
sufficient  to  pay  the  judgment,  and  that  to  complete  the  execution  of 
the  judgment  an  elegit  issued  and  was  afterwards  countermanded  by 
the  plff.  Fourth,  Levied  by  fi.  fa.  Fifth.  Levied  by  fi.  fa.  and 
elegit.  Sixth,  Levied  by  elegit,  with  leave  to  give  the  special  matter 
ia  evidence. 

The  plff.  tendered  an  issue  to  the  first  and  second  pleas;  and  re- 
plied to  the  four  last  by  way  of  estoppel  that  since  the  happening  of 
the  matters  therein  alledged  and  set  forth,  to  wit,  on  the  19  March 
1821  a  scire  facias  issued  on  said  judgment  to  which  the  defendant 
appeared;  and  at  the  March  Term  1822,  judgment  was  rendered  in 
favor  of  the  said  plff. 

To  this  the  deft,  rejoined  that  the  judgment  on  the  said  scire  fa- 
cias was  a  judgment  "amount  to  he  ascertained  hy  the  clerk"  and 
that  no  amount  was  ever  ascertained.     Demurrer  and  joinder. 

Frame  for  plff.  contended  that  although  the  aniount  had  never 
been  ascertained,  the  judgment  on  the  scire  facias  estopped  the  deft, 
from  pleading  any  matters  that  took  place  prior  and  which  might 
have  been  pleaded  to  that  judgment.  2  Tidd.  1046;  2  Saund.  72; 
]  Do.  219.  The  object  of  a  sci..  fa.  is  to  get  execution;  the  cause 
shown  in  the  fourth,  fifth  and  sixth  pleas  is  that  the  debt  has  been 
made,  they  deny  that  anything  is  due.  But  by  confessing  judg- 
ment on  the  sci.  fa.  the  deft,  admits  that  something  is  due  and  he  is 
estopped  from  now  controverting  his  own  admission.  It  does  not 
alter  the  case  that  the  amount  has  not  been  ascertained.  The  judg- 
ment admits  something  due  and  this  raises  the  estoppel.  The  third 
plea  does  not  alledge  that  the  debt  was  satisfied  either  by  the  fi.  fa. 
cr  the  elegit;  the  facts  stated  therefore  amoimt  to  no  defence.  Tak- 
ing out  execution  is  no  satisfaction;  and,  unless  the  elegit  was  exe- 
cuted, this  is  no  defence.  The  plea  here  negatives  the  payment  as  it 
t^tates  that  the  elegit  was  stayed. 

Johnson  for  deft. —  I  admit  the  principle  stated  in  Tidd  that  yoTi 
cannot  plead  to  a  scire  facias  what  occurred  before  the  original  judg- 
ment, but  deny  that  this  prevents  us  from  pleading  any  thing  that 


140  WoRKNOT,  USE  OF  Earle  VS.  Millen's  Adm'r. 

occurred  after  the  original  judgment  though  before  the  first  sci.  fa. 
on  which  a  judgment  was  obtained.  This  principle  refers  to  the  orig- 
inal judgment.  An  estoppel  must  be  pleaded  with  the  greatest  cer- 
tainty. Coke  Liu.  352,  a.  If  the  plff.  goes  back  beyond  the  judg- 
ment on  the  sci.  fa.  on  the  same  principle  we  may  go  back  and  plead 
matters  prior  to  that  judgment.  And  this  judgment  is  in  itself  of  no 
consequence  as  no  amount  has  ever  been  ascertained.  It  is  a  judg- 
ment for  nothing.  1  Yeates  254.  Judgment  by  way  of  security 
admits  nothing,  but  the  plff.  must  take  out  what  is  due.  2  Saund. 
7,  note  2. 

Frame. — It  is  not  essential  to  the  validity  of  an  estoppel  that  the 
suit  should  be  founded  on  it ;  an  admission  will  estop  though  the  suit 
is  not  founded  on  the  admission.  An  alias  sci.  fa.  is  not  predicated 
on  the  first  sci.  fa.  but  on  the  original  judgment.  If  the  matter  now 
alledged  as  a  defence  is  true  then  the  judgment  on  the  sci.  fa.  was 
false.  Is  he  not  therefore  estopped  by  his  admission  from  falsi- 
fying that  judgment." 

The  Court  sustained  the  demurrer,  Mr.  Justice  Black  delivering 
the  opinion. 

Black,  J. — On  the  first  scire  facias  the  administrator  of  Millen 
confessed  a  judgment  and  by  this  admitted  that  the  debt  of  the  plff. 
or  the  original  judgment  had  not  been  paid  or  discharged  at  the  time 
of  such  confession — this  admission  stands  on  the  record.  To  the 
present  scire  facias  the  administrator  pleads  that  prior  to  the  ren- 
dition of  the  judgment  on  the  first  sci.  fa.  this  original  judgment  had 
been  fully  satisfied  by  process  of  execution,  and  that  nothing  remained 
due  on  it  when  the  judgment  on  the  first  scire  facias  was  rendered 
— thus  denying  what  by  the  record  was  formerly  admitted.  The 
entry  "  that  the  amount  shall  be  ascertained  "  does  not  vary  the  case, 
for  it  admits  that  the  judgment  has  not  been  satisfied,  but  provides  a 
mode  for  ascertaining,  not  whether  any  thing  is  due,  but -how  much. 
If  the  present  pleas  be  true,  then  the  admission  made  on  the  record 
on  the  first  sci.  fa.  was  not  true.  These  pleas  aver  in  effect  that  the 
admission  was  not  true. 

If  a  point  has  been  once  litigated  or  at  issue  between  the  pq,rties 
and  be  settled  by  a  verdict  or  admission  of  a  party,  in  any  subsequent 
proceeding  between  the  same  parties,  this  point  cannot  be  contro- 
verted. 

The  judgment  on  the  scire  facias  was  not  as  was  intimated  by  the 
cleft.'s  counsel,  an  interlocutory  judgment.  It  was  an  absolute  and 
final  judgment  that  execution  should  go  for  the  amount  of  the  pen- 
alty of  the  judgment :  the  provision  "  that  the  amount  should  be 
ascertained  "  had  reference  to  the  sum  that  should  be  endorsed  on 
that  execution  as  the  real  debt  that  should  be  levied  under  the  exe- 
cution. 

The  deft,  in  consequence  of  the  admission  on  the  record  by  the 
confession  of  judgment  on  the  scire  facias  is  estopped  from  denying 
the  truth  of  that  admission  or  of  pleading  the  matters  set  forth  in  the 
third,  fourth,  fifth  and  sixth  pleas.  The  demurrer  therefore  must  be 
sustained.     . 


Eaves'  Adm'r.  vs.  King. 


141 


Clayton,  C.  J.  having  been  counsel  for  the  plff.  on  the  first  sci. 
fa.  declined  sitting  on  this  cause  but  concurred  in  the  opinion. 

The  case  came  on  for  trial  at  the  next  term  on  the  plea  of  pay- 
ment. The  probate  offered  was  taken  before  Evan  H.  Thomas, 
•' Register  for  the  probate  of  wills  and  granting  letters  of  adminis- 
tration in  and  for  Newcastle  county/'  and  it  was  objected  to  on  the 
ground  that  such  an  officer  had  no  authority  to  take  it.  On  the  other 
side  it  was  contended  that  the  Eegister  had  power  ex  officio  to  admin- 
ister oaths  in  any  case  where  it  is  proper  that  an  oath  should  be 
taken.  He  is  a  judicial  officer;  has  judicial  power  and  is  recognized 
as  such  by  the  constitution.  Art.  6,  sec.  1.  "  The  judicial  power  of 
this  State  shall  be  vested  in  a  court  of  Errors  and  Appeals,  Superior 
Court,  &c.  "  a  Registers  Court"  Justices  of  the  Peace,  &c.  &c." 

Dig.  419.  "  The  Chancellor,  each  of  the  Judges,  every  Justice  of 
the  Peace  and  every  Notary  Public  in  this  State  shall  have  authority 
in  every  case  in  which  an  oath  or  affirmation  is  necessary,  or  proper, 
to  administer  such  oath  or  affirmation." 

The  Court  (the  Chief  Justice  not  sitting)  was  divided  on  this 
question;  Black,  J.  for  sustaining  the  probate,  and  Robinson,  J. 
against  it. 

The  plff.  then  produced  a  probate  sworn  before  the  Mayor  of 
Philadelphia,  and  properly  certified,  which  was  admitted,  and 

The  plaintiff  had  a  verdict. 

Frame  and  Huffington,  for  plaintiff. 

Johnson,  for  defendant. 


SAMUEL  EAVES  Adm'r.  of  ABRAHAM  S.  EAVES  vs.  MICHAEL 

KING. 

The  plea  of  non  cepit  in  replevin  admits  the  property. 

A  plea  of  property  in  a  negro  slave  is  not  supported  by  evidence  of  her  freedom. 

Replevin  for  a  negro  woman  and  two  children.  Pleas,  non 
cepit ;  property  in  deft. ;  and  property  in  a  stranger ;  issues. 

The  deft,  offered  evidence  of  the  freedom  of  the  negroes,  but  it 
was  rejected  by  the  court. 

The  plea  of  non  cepit  admits  the  property  in  the  plff.,  and  this 
evidence  is  not  admissible  to  contradict  that  plea.  It  does  not  go  to 
establish  either  of  the  other  pleas;  it  does  not  show  property  in  the 
deft.,  nor  in  a  stranger;  in  truth  it  contradicts  both  of  these  pleas  as 
well  as  the  express  admission  of  the  first  plea.  Moreover  the  free- 
dom of  the  negroes  cannot  be  tried  in  this  proceeding. 

The  plaintiff  had  a  verdict  $30  damages. 

Gray,  for  plaintiff. 

WCiles,  for  defendant. 


142  HiCHARDsoN  VS.  Carr. 

The  State,  use  of  WOODS  &  QUIGG  vs.  NATHANIEL  BECKLEY. 

In  debt  on  an  administration  bond,  the  plaintiff  must  show  assets. 
A  statement  filed  with  the  Register  that  there  are  no  goods,  is  equivalent  to 
filing  an  inventory. 

Debt  on  an  administration  bond.  Pleas,  plene  administravit ;  re- 
tainer, and  debts  of  superior  dignity.     Replications  and  issues. 

Beekley  was  the  administrator  of  Thomas  Kearns.  The  breach 
assigned  on  the  bond  was  that  he  had  filed  no  inventory  of  the  goods 
of  Kearns,  nor  any  account  of  his  administration.  The  plffs.  then 
showed  a  judgment  at  their  suit  against  Kearns  for  $268  69,  and  a 
judgment  of  assets  on  a  sci.  fa.  on  this  judgment  against  Beekley 
the  administrator.     And  they  rested  their  case. 

Wales,  for  the  deft,  offered  in  evidence  a  statement  made  by  Beck- 
ley  the  administrator,  and  filed  before  the  register,  setting  forth  that 
Kearns  had  no  property  whatever.  This  statement  was  filed  after 
the  issue  joined  in  this  case.  It  was  objected  to  by  the  plff's.  coun- 
sel on  the  ground  that  it  was  evidence  manufactured  by  the  deft,  for 
himself ;  but 

The  Court  admitted  it,  suggesting  that  it  was  similar  to  and  in 
lieu  of  the  passing  an  account.  Indeed  it  was  the  only  account  Beck- 
ley  could  pass.  But  the  court  said  it  was  not  the  duty  of  the  deft, 
to  show  he  had  no  assets,  but  of  the  plff's.  to  show  he  had.  If  assets 
be  shown,  the  deft,  must  prove  that  he  has  administered  them. 

The  plaintiff  was  nonsuited. 

Gray  and  Hamilton,  for  plaintiff. 

Wales,  for  defendant. 


THOMAS   RICHARDSON,   Appellant,   d.   b.   vs.   JOHN   CARR, 
Respondent,  plaintiff  below. 

Injuries  to  cattle,  though  trespassing,  are  actionable. 

Appeal  from  the  decision  of  a  justice  of  the  peace. 

This  was  an  action  of  trespass  for  worrying  a  cow  with  dogs  so 
that  she  died.  It  appeared  by  the  evidence,  that  the  plff's.  cow  had 
been  trespassing  in  the  deft's.  close,  and  that  he  stoned  her,  and  set 
dogs  upon  her;  but  there  was  some  doubt  whether  her  death  was 
occasioned  by  this  conduct  of  the  deft.,  or  from  a  surfeit  in  eating 
corn. 

The  Court  charged  the  jury 

That  if  a  cow  be  found  trespassing  on  another's  property,  the 
owner  of  the  property  may  impound  her,  or  sue  fox  damages,  or 
drive  her  out;  but  in  driving  her  out  he  must  use  only  necessary 
violence,  or  he  becomes  himself  a  trespasser  and  liable  in  damages 
to  the  owner  of  the  cow.  If  the  deft,  in  this  case  beat  the  plff's. 
cow  and  mangled  her  with  dogs  as  he  is  charged,  he  is  a  trespasser 
though  the  cow  was  in  his  corn  field,  and  the  plff.  ought  to  have 
damages,  to  the  value  of  the  cow,  if  her  death  was  occasioned  by  his 


MUEPHY  VS.  COUNTISS.  143 

act;  and,  if  not,  to  the  amount  of  the  injury.  If  however,  in  turn- 
iog  her  out  of  his  field,  he  used  only  the  necessary  force,  and  her 
ceath  arose  from  other  cause  the  deft,  ought  to  have  a  verdict. 

Verdict  for  appellant,  defendant  below. 

Hamilton,  for  appellant. 

Wales,  for  respondent. 


JAMES  M'DERMOTT  vs.  JAMES  KENNEDY. 

The  defence  of  possession,  how  far  an  excuse  in  an  action  of  assault  and 

battery. 
If  one  orders  another- out  of  his  house  he  is  bound  to  go;  and,  if  he  refuses, 

the  necessary  fore*  may  be  lawfully  used  to  put  him  out. 

Trespass,  assault  and  battery.  Pleas,  Not  guilty  and  justifica- 
lion. 

The  ease  was  this.  Kennedy  being  in  the  plff's.  store  and  a  dis- 
])ute  arising,  the  plff.  ordered  him  out,  when  he  refused  to  go.  Plff. 
then  took  hold  of  him  to  put  him  out;  and,  in  the  struggle,  they 
])oth  fell  down  the  steps  and  the  plff.  was  badly  injured. 

The  case  was  submitted  to  the  jury. 

The  Court  charging:  That  if  a  man  orders  another  out  of  his 
liouse,  he  is  bound  to  go ;  and,  if  he  refuses,  the  owner  or  occupant  of 
the  house  has  a  right  to  put  him  out,  and  to  use  the  force  necessary 
j'or  that  purpose.  That  though  in  a  criminal  proceeding  a  party  is 
not  answerable  for  a  mere  accident,  yet  a  trespasser  is  liable  in  a 
<;ivil  action,  for  accident*  arising  from  his  improper  conduct,  except 
such  as  are  inevitable. 

Verdict  for  plaintiff  $35  44. 

Booth,  for  plaintiff. 

Rogers,  for  defendant. 


MOSES  MUEPHY  vs.  PETER  COUNTISS. 

A  false  imprisonment  does  not  necessarily  include  an  assault  and  battery. 
Jf  an  officer  illegally  imprisons  a  person  he  is  liable  not  only  for  the  time  he  is 
in  the  officer's  custody,  but  for  all  the  time  of  his  imprisonment. 

Trespass,  assault  and  battery,  and  false  imprisonment.  Pleas, 
Not  guilty  and  justification. 

The  plff.  was  claimed  as  a  servant  by  one  Stephen  Townsend,  and 
ihe  deft,  being  a  constable,  arrested  and  put  him  in  prison  as  such 
^rvant.  Upon  investigation,  it  turned  out  that  Townsend  had  no 
A^alid  claim  to  the  plff.     Whereupon  he  brought  this  suit. 

His  counsel  contended  that  every  imprisonment  necessarily  in- 
cluded an  assault  and  battery;  which  was  denied,  and  the  deft,  in- 
f^isted  that,  if  liable  at  all,  he  was  only  liable  while  plff.  was  in  his  cus- 
tody and  not  for  the  whole  period  of  his  imprisonment. 

The  Court  said  the  older  authorities  sustained  the  position  of  the 
plff's.  attorney.     In  the  time  of  Lord  Kenyon  and  since,  however, 


144  Whiteman  v8.  Slack. 

the  decisions  have  been  that  a  false  imprisonment  does  not  necessa- 
rily include  a  battery.  But  it  makes  no  difference  here;  the  false 
imprisonment,  if  proved,  will'  entitle  the  plff.  to  rjecover;  and  not 
merely  for  the  time  the  constable  was  bringing  him  to  jail,  but  for 
the  whole  period  of  his  imprisonment. 

The  plaintiff  had  a  verdict. 

Gilpin,  for  plaintiff. 

Latimer,  for  defendant. 


THOMAS  MILNEE  vs.  BAINTON  &  BANCKOFT. 
"  We  certify  that  we  are  bound  to  pay  "  is  a  promise  to  pay. 

Assumpsit.  Pleas,  non-assumpsit;  payment,  discount  and  act  of 
limitations. 

The  narr  contained  two  counts  on  a  special  promise  in  writing,  to 
pay  Milner  $80,  &c.,  and  the  common  money  counts.  The  plff. 
gave  in  evidence  this  paper: — 

"  Sth  December  1830. 

This  is  to  certify  that  we  are  bound  to  Thos.  Milner,  in  the  sum 
of  eighty  dollars  on  account  of  money  included  in  John  Simpson's 
bond  to  us.     As  witness  our  hands  this  Sth  Dec.  1830. 

BAINTON  &  BANCROFT." 

The  deft,  moved  a  nonsuit  on  the  ground  that  this  paper  did  not 
support  the  declaration.  The  declaration  states  a  promise  to  pay; 
this  paper  contains  no  such  promise. 

The  Court  refused  the  nonsuit.  The  paper  is  set  out  merely  ac- 
cording to  substance  and  legal  effect.  The  acknowledgment  of  defts. 
that  they  were  bound  to  pay,  is  equivalent  to  a  promise  to  pay. 

Verdict  for  plaintiff. 

Wales,  for  plaintiff. 

Hamilton,  for  defendant. 

THOMAS  WHITEMAN  vs.  LEWIS  SLACK. 

A  covenant  for  the  forthcoming  of  goods  to  be  levied  on  at  the  suit  of  A.  i* 
broken  by  causing  them  to  be  levied  on  in  the  mean  time  at  the  suit  of  the 
covenantor. 


See  a  full  statement  of  the  case  in  William  B.  Crawford  & 
Co.  vs.  Lewis  Slack,  ante  p.  122.  This  suit  was  brought  on  the 
same  instrument. 

Narr  in  covenant.  Plea,  "  That  deft,  did  cause  the  goods  and 
chattels  of  Nathan  Coggins  to  be  forthcoming  according  to  the  form 
and  effect  of  the  deed,  &c." 

On  the  24th  June  1831,  Whiteman,  being  a  constable  of  Newcastle 
county,  held  sundry  executions  in  his  hands  against  Nathan  Coggins 
at  the  suit  of  Wm.  B.  Crawford  &  Co.  to  the  amount  of  about  $300, 
and  being  about  to  levy  on  Coggins'  property  the  deft.  Slack,  with 


HuEY  VS.  Hendrixen,  et  al.  145 

a  view  to  stop  this  proceeding,  entered  into  an  engagement  for  their 
forthcoming  on  the  following  Monday  the  27th  June;  and  executed 
the  paper  on  which  this  suit  was  brought.  Very  early  the  next  morn- 
iag  Slack  and  Coggins  went  before  justice  Eussel,  and  Coggins  con- 
fessed ten  several  judgments  to  Slack  to  the  amount  of  $470.  Exe- 
cutions were  issued  immediately  on  these  judgments,  and  delivered 
to  constable  Adair,  who  forthwith  seized  and  took  in  execution  all 
the  goods  of  Coggins.  Adair  afterwards  sold  the  goods  and  applied 
the  proceeds  to  Slack's  executions. 

Harrington,  J.,  stated  the  issue  to  the  jury,  and  charged  them 
that  Slack  having  by  his  own  act  put  it  out  of  his  power  to  perform 
]iis  covenant  with  the  plff.,  was  liable  to  him.  The  arrangement 
entered  into  on  the  24th  June,  between  Slack  and  Whiteman,  was 
])rofessedly  to  save  Coggins'  credit.  The  extent  of  his  engagement. 
AV'ith  Whiteman  was  to  place  him  in  the  same  condition  in  relation 
10  these  goods  on  Monday  as  he  then  stood  in;  the  causing  them  to- 
1)6  levied  on  immediately  afterwards  at  his  own  suit,  was  in  violation 
of  the  agreement.  By  that  levy  constable  Adair  obtained  the  legal 
<!Hstody  of  the  goods,  and  Slack  had  it  no  longer  in  his  power  to  de- 
liver them  to  Whiteman  according  to  his  engagement.  Constable 
Whiteman  being  liable  to  Crawford  &  Co.,  for  the  amount  of  their 
executions,  ought  to  be  indemnified  by  this  verdict. 

Verdict  for  the  plaintiff  $323  94. 

Rogers,  for  plaintiff. 

Booth,  for  defendant. 


JOHN  HUEY  vs.  PETER  HENDRIXEN",  and  others. 

In  laying  out  a  road  under  an  order  of  court,  the  order  must  be  followed,  or 

the  party  ig  guilty  of  a  trespass. 
The  deviation  may  be  proved  without  pretensions  being  regularly  laid  down. 

Trespass  quare  clausum  f regit.  Plea,  Not  guilty;  justification 
and  a  license. 

Three  of  the  defts.  were  the  road  commissioners  of  Brandywine 
hundred,  and  the  others  their  agents.  On  an  application  to  the  Court 
of  General  ^ssions,  an  order  had  been  regularly  made  to  lay  out  a 
road  through  the  plff's  premises,  according  to  a  certain  return  of 
freeholders.  The  defts.  acting  under  this  order  went  upon  plff's. 
land  and  laid  out  a  road  essentially  different,  as  he  contends,  from 
that  authorized  by  the  order;  and  that  the  deviation  was  wilful 
and  designed,  and  much  to  his  prejudice. 

The  plff.  called  Joseph  Taylor,  a  surveyor  who  had  laid  down  his 
pretensions.  He  proved  the  plots  and  they  were  offered  in  evi- 
dence.    Objected  to. 

Hamilton. — The  rule  to  lay  down  pretensions  under  which  these 
plots  were  made,  was  laid  between  other  parties  than  those  in  the 
case  now  trying.  They  are  therefore,  not  pretensions  authorized  by 
any  warrant  in  this  cause  and  are  not  evidence. 

19 


146  M'Call  vs.  Reybold. 

Bayard. — These  plots  would  be  evidence  without  any  rule.  We 
could  have  made  a  survey  ex  parte  of  the  lines  pointed  out  by  the 
record  of  the  Court  of  General  Sessions  authorizing  a  road,  and  prove 
by  the  surveyor  that  the  road  cut  by  these  defts.  is  not  laid  down  ac- 
cording to  that  order.  We  might  prove  this  by  any  other  witness, 
and  much  more  so  by  a  surveyor  who  has  run  and  plotted  the  ground. 
The  objection  here  arises  ffom  an  accidental  mistake  of  the  clerk  in 
making  out  the  rule  to  lay  down  pretensions;  some  of  the  defts.  were 
omitted.  The  truth  is,  the  rule  was  obtained  in  this  cause  and  be- 
tween these  parties. 

Rogers,  in  reply.  The  doctrine  is  new  that  a  party  in  an  action 
of  trespass,  can  lay  down  his  pretensions  without  warrant.  This  is 
a  cause  between  Huey  and  nine  defts.  The  plff.  offers  pretensions 
laid  down  in  a  cause  between  Huey  and  five  defts.  The  sheriff 
could  not  give  notice  to  other  persons  than  those  named  in  the  rule. 
All  the  defts.  are  entitled  to  notice,  and  are  not  bound  without  no- 
tice. 

The  Court. — This  is  a  case  of  trespass  for  damages  in  cutting  a 
road  through  plff's.  land.  The  defence  is  a  justification  by  an  order 
of  court  authorizing  the  road  to  be  laid  out.  The  defts.  must  show 
that  the  road  is  laid  out  according  to  the  order,  to  make  out  their 
justification.  As  a  mere  execution  of  a  warrant  to  lay  down  preten- 
sions this  plot  is  not  evidence.  But  the  witness  may  be  asked  if  he 
has  run  the  land;  if  the  road  as  opened  corresponds  with  the  order; 
in  what  respects  it  varies;  and  he  may  use  this  plot  to  refresh  his 
memory. 

Verdict  for  the  plaintiff  $525  00. 

Booth  and  R.  H.  Bayard,  for  plaintiff. 

Hamilton  and  Rogers,  for  defendants. 


JOHN  M'CALL  vs.  PHILIP  REYBOLD. 

One  tenant  in  common  cannot  maintain  trespass  against  a  co-tenant  unless 
there  has  been  a  destruction  of  the  thing  held  in  common,  or  after  recovery 
in  ejectment,  Ac. 

A  partition  may  be  presumed  from  a  long  several  holding  by  heirs  of  land 
descended  to  them  from  a  common  ancestor. 

When  a  partition  may  be  presumed. 

Trespass  quare  clausum  f regit.  Pleas,  Not  guilty;  justification 
and  liberum  tenementum. 

Plff.  proved  the  trespass,  and  that  the  locus  in  quo  being  a  certain 
marsh  in  Redlion  hundred,  had  descended  from  Patrick  Porter,  and 
had  been  in  the  several  and  undisturbed  possession  of  plff.  and  those 
\inder  whom  he  claimed  from  1801-2  or  3  to  1821,  since  which  time 
the  possession  had  been  disturbed  by  Reybold  by  repeated  claims  of 
ownership.  The  marsh  was  divided  by  a  natural  sluice;  that  part 
on  the  north  part  of  the  sluice  was  in  possession  of  Jones  in  1801-2 
or  3,. at  the  witness'  earliest  recollection,  and  never  claimed  by 
Rice,  who  held  the  part  on  the  south  side.  The  Jones  lot  passed 
through  several  conveyances  to  Reybold:  the  Rice  lot  descended  to 
plff's.  wife. 


M'Call  vs.  Eeybold.  147 

The  deft,  set  up  a  tenacy  in  common  in  the  locus  in  quo;  went 
into  a  history  of  the  Porter  family,  and  gave  in  evidence  sundry 
deeds  forming  a  chain  of  title  in  him  to  one-half  the  land  which  he 
insisted  had  never  been  divided.  These  deeds  all  spoke  of  it  as  undi- 
vided property.  He  exhibited  a  deed  from  David  Porter  to  Evan 
3ice,  reciting  Patrick  Porter's  will,  and  conveying  an  undivided 
one-third  of  a  moiety  of  land  and  marsh,  22d  December  1802.  Deed 
::rom  Kice  and  wife  to  Purnel  Yeach  for  one-third  of  a  moiety,  1st 
July  1809.  Proceedings  and  deed  of  sheriif  to  Archibald  Alexander 
::or  one-half  of  a  moiety  the  share  of  John  Jones,  20th  December 
1811;  deed  of  Alexander  to  Yeach,  9th  June.  ISl-i;  from  Yeach 
;o  Thos.  M.  Forman  and  from  Forman  to  Reybold,  1st  Jan.  1820. 

In  reply  the  plff.  gave  in  evidence  the  record  of  certain  articles 
of  agreement  between  Purnel  Yeach  of  the  one  part,  and  Evan  Rice 
on  the  other  part,  dividing  as  he  contended  these  lands,  1st  July 
1809.  The  articles  fixed  on  certain  lines  as  the  division  between 
ihe  upland,  and  bound  the  parties  to  execute  mutual  deeds  of  release 
according  to  those  lines.  They  agreed  to  divide  the  marsh,  but  no 
lines  were  mentioned.  The  terms  were  "  The  said  Evan  Rice  and 
Purnel  Yeach,  each  agrees  to  release  to  each  other  "  the  marsh  lots,  so 
that  each  shall  hold  their  parts  in  severalty;  and  they  bound  them- 
selves in  a  penalty  to  execute  such  releases. 

In  answer  to  this  the  deft,  called  William  P.  Yeach,  the  son  of 
Purnel  Yeach,  who  proved  that  he  never  knew  of  any  actual  division 
of  the  marsh  in  conformity  with  this  agreement. 

Richard  H.  Bayard,  to  the  jury,  for  plaintiff. 

Trespass  quare  clausum  fregit.  The  deft,  claims  the  land  and 
has  put  us  on  showing  title.  Patrick  Porter  died  seized  of  a  farm  and 
twenty-one  acres  of  marsh  in  Redlion  hundred.  His  estate  went 
under  this  will  to  his  daughters  Janet  and  Mary  Porter.  Janet  mar- 
ried Robert  Porter;  Mary  married  Whitehead  Jones.  Porter  and 
wife  and  Jones  and  wife  were  each,  therefore,  entitled  to  one-half 
of  this  marsh.  Robert  Porter  and  Whitehead  Jones  divided  the 
marsh,  as  we  contend,  some  thirty  3'ears  ago  or  more,  Jones  taking 
that  part  which  lay  to  the  north  of  the  sluice,  and  which  has  always 
been  called  the  Jones  lot;  Porter  taking  the  south  side,  which  shortly 
went  into  the  possession  of  Evan  Rice,  and  has  since  been  known 
as  the  Rice  lot.  Whitehead  Jones  and  wife  had  issue,  John  Jones 
and  Mary  Jones.  Mary  Jones  married  Evan  Rice.  Rice  and  wife 
therefore,  had  one-half  of  the  Jones  lot.  Robert  Porter  and  wife 
had  issue  Mary  Porter  and  David  Porter,  who  were  each  entitled  to 
ono-half  of  the  south  or  Rice  lot.  Evan  Rice's  second  wife  was 
Mary  Porter,  and  he  thus  became  entitled  to  Mary's  one-half  of 
the  Rice  lot,  having  before  one-half  of  the  Jones  lot  in  right  of  his 
first  wife  Mary  Jones:  which  last  he  conveyed  to  Purnel  Yeach,  and 
from  him  it  came  to  Revbold.  Evan  Rice  bought  David  Porter's 
one-h^lf  of  the  Rice  lot,  Avhich  gave  to  him  the  whole  of  this  lot ;  and 
Revbold  becoming  possessed  of  John  Jones'  share  and  the  remaining 
half  of  the  Jones'  lot,  is  the  owner  of  the  whole  of  that  lot.  The 
title  to  the  Rice  lot,  or  locus  in  quo,  descended  from  Rice  and  wife 
to  plff's.  wife,  their  only  surviving  child. 

From  the  long  several  holding  of  this  marsh,  we  have  a  right  to 


148  M'Call  vs.  Reybold. 

conclude  that  Whitehead  Jones  and  Eobert  Porter  made  a  division; 
whicli,  at  that  day,  could  have  been  done  as  well  by  parol  and  livery 
of  seizin  as  by  writing.  But  there  is  a  subsequent  actual  partition 
by  deed  between  Purnel  Yeach  and  Evan  Rice.  We  contend  that 
this  is  an  actual  division,  and  not  merely  an  agreement  to  divide. 
They  mutually  contract  and  agree  to  release  to  each  other  by  a  line 
"  which  it  is  agreed  shall  be  the  dividing  line  between  the  parties." 
I  agree  to  release  is  the  same  as  I  release,  and  the  same  form  of  lan- 
guage is  used  in  introducing  the  penalty.  In  confirmation  whereof, 
we  agree  to  bind  ourselves,  &c.  The  last  clause  is  only  a  covenant 
for  further  assurance.  Deeds  must  be  construed  according  to  the  in- 
tention of  the  parties,  and  here  they  were  in  the  contemporaneous 
holding  and  enjoyment  of  the  property  as  released  to  each  other. 
AVashington  Eice  proves  that  his  brother  held  in  severaltv  from 
18D1-2  or  3.  Thip  deed  was  in  1809.  Why  was  this  instrument 
jecorded  if  not  a  conveyance  ?  The  parties  thus  showed  their  intent : 
a  mere  agreement  to  convey  is  not  entitled  to  be  recorded.  Doctor 
Alexander's  deed  to  Veach,  bounds  the  Jones  lot  to  the  south  by 
Rice's  land,  which  shows  the  holding  at  that  time;  and  moreover 
this  is  an  estoppel,  for  deft,  claims  through  Veach  and  Alexander. 
If  this  were  a  tenancy  in  common,  Evan  Rice  would  have  been  en- 
titled to  a  share  of  the  Jones  marsh  which  he  never  claimed,  and 
which  Jones  and  his  successors  held  without  disturbance.  That 
being  held  in  severalty,  is  strong  proof  that  this  was  so  held.  And 
if  there  were  any  doubt  about  a  severance  of  this  tenancy  in  com- 
mon, the  jury  would  presume  it  after  such  a  lapse  of  time.  We  have 
proved  an  actual  several  holding  by  Evan  Rice  nineteen  or  twenty 
years  ago,  and  he  no  doiibt  so  held  long  previously.  3  Bac.  Ah.  7D9; 
Noy's  Rep.  14;  Cowper  217.     Actual  ouster  what? 

Rogers,  for  defendant,  to  the  jury. 

Tli^  deed  of  David  Porter  to  Evan  Rice  conveys  only  a  third  of 
a  moiety  of  this  land.  He  was  entitled  to  one-half  of  the  moiety, 
and  therefore  he  is  a  tenant  in  common  with  the  plff.  for  a  portion 
of  the  Rice  lot  supposing  a  division  was  made,  and  he  ought  as  such 
tenant  in  common  to  have  been  joined  in  this  action,  for  such  tenant 
can't  sue  separately  for  a  trespass  to  their  common  property.  But 
was  this  marsh  even  divided  ?  A  plot  of  all  the  Redlion  marsh  made 
undor  an  act  of  assembly  in  1805  lays  down  this  marsh  as  the  un- 
divided property  of  Jones  and  Rice.  The  testimonv  in  relation  to 
what  is  now  assumed  as  the  dividing  line  is,  that  about  twenty-five 
or  twenty-six  years  ago  the  Redlion  bank  broke,  and  made  this 
sluice.  As  a  dividing  line  it  could  not  have  existed  more  than  twenty- 
five  or  twenty-six  years.  And  for  ten  years  past,  it  is  admitted 
that  the  possession  has  been  disturbed.  Xext  the  deed  of  Rice  and 
wife  to  Veach  shows  that  no  division  had  been  made.  It  conveys 
"  an  undivided  third  part  of  the  moiety."  John  Jones'  share  was  exe- 
cuted and  sold  as  "two-thirds  of  an  undivided  part  of  the  land." 
Finally,  the  agreement  between  Evan  Rice  and  Pumcl  Veach,  which 
has  been  so  much  relied  on  by  the  plff.  shows  that  there  had  been  no 
division  theretofore.  It  agrees  upon  a  dividing  line  for  the  upland 
but  no  line  is  fixed  on  as  a  division  of  the  marsh.  They  bind  them- 
selves to  release  to  each  other  their  shares  of  marsh,  so  that  each 


M'Call  vs.  Eeybold. 


149 


should  hold  in  severalty:  does  not  this  prove  that  it  was  then  held 
in  common?  Then  does  this  article  effect  that  partition?  Xo,  it 
\\as  merely  an  agreement  to  divide;  an  executory  contract.  Who 
vere  the  parties  to  this  instrument?  Evan  Rice  was  then  the  hus- 
band of  Mary  Jones.  Mary  Porter  his  first  wife  was  dead  leaving 
issue;  that  issue,  and  not  Rice,  were  entitled  to  one-fourth.  David 
I'orter  had  and  interest  still  in  it,  and  Rice  had  only  one-third  of  a 
moiety,  and  that  as  a  tenant  by  the  curtesy.  How  then  could  Evan 
liice  make  a  partition  with  Veach?  As  to  its  being  a  conveyance 
because  it  is  recorded,  any  deed  in  relation  to  lands  may  be  recorded, 
A^'hether  it  conveys  land  or  not.  It  has  been  called  a  release,  and  has 
leen  said  to  sever  the  tenancy  in  common  by  way  of  release,  but  one 
tenant  in  common  cannot  release  to  his  co-tenant.  Whatever  may  be 
its  effect  it  is  not  a  release. 

J.  M.  Clayton,  on  the  same  side.  The  plff.  claims  that  there  has 
been  a  partition  of  this  marsh.  Look  on  the  plot  and  see  what  is  the 
tqual  division  which  they  say  has  been  made.  Coming  down  to  the 
sluice,  their  dividing  line,  it  will  be  seen  that  we  have  got  about  four 
er  five  acres  of  the  marsh,  and  they  twenty-ones  acres  and  one  hundred 
and  ten  perches.  We  say  it  is  conclusive,  that  no  such  division  ever 
yvsLS  made.  But  what  is  the  testimony  in  relation  to  the  holding.  All 
Ihe  deeds  state  this  to  be  undivided  property.  Rice's  deed.  Alexander's 
jind  Forman's.  Mr.  Bayard  was  mistaken  in  relation  to  Alexander's 
deed.  Xo  such  boundary  as  he  supposed,  is  mentioned  in  that  deed. 
]3ut  this  part  of  the  case  is  shut  up  by  the  articles  of  agreement  be- 
tween Rice  and  Veach.  Here  the  tenancy  in  common  is  expressly  ad- 
nnitted ;  and  the  question  is  whether  that  deed  had  the  effect  to  sever  it 
in  relation  to  the  marsh.  As  to  the  upland,  we  have  no  objection  to 
udmit  that  it  did ;  it  distinctly  fixes  and  describes  a  dividing  line,  and 
the  holding  has  been  in  accordance  with  that  division;  but  we  deny 
that  the  parties  intended  or  did  any  thing  more  by  that  deed  than  to 
ugree  to  divide.  In  relation  to  the  marsh,  the  deed  says  "  The  said 
Evan  Rice  and  Purnel  Veach,  each  agrees  to  release  to  each  other  the 
marsh  lots,  so  that  each  shall  hold  their  parts  in  severalty ;  "  and  they 
bound  themselves  in  a  penalty,  to  execute  such  releases.  Nothing  is 
clearer  than  that  this  is  but  an  executory  agreement  to  provide,  with 
covenants  to  convey  or  release.  And  if  Rice  and  Veach  had  actually 
released,  it  would  not  have  severed  the  tenancy.  Tenants  in  common 
cannot  release  to  each  other.  Then  if  this  tenancy  has  not  l)een  sev- 
ered plff.  must  fail.  Bac.  Ah.  694,  v.  3,  Wils.  Edit.  Co.  Litt.  193,  h. 
Cruise  tit.  20.  One  tenant  in  common  cannot  bring  trespass  against 
another,  for  both  are  seized  per  my  et  per  tout.  2  Sehc.  N.  P.  1023. 
An  ouster  cannot  be  presumed  in  this  case.  No  such  presumption  has 
ever  been  allowed  in  less  than  thirty-six  years.  The  case  in  Cowpcr 
narrows  it  down  to  that  time.  An  actual  ouster  cannot  be  pretended ; 
for  the  plff.  has  himself  proved  that  he  continues  in  possession.  If 
two  tenants  in  common  be,  and  one  destroy  the  property  held  in  com- 
mon, the  other  shall  have  an  action  of  trespass.  Co.  Litt.  s.  323,  199  h. 
This  proceeds  on  the  destruction  of  the  thing,  and  it  explains  the  case 
cited  from  Noy. 

(Note.)      See  1   Chit  Plead.   182;   2  Saund.  Evid.   458,    (896.) 


150  M'Call  vs.  Reybold. 

Cites  Co.  Litt.  1996;  3  Wils.  119,  and  12  Mod.  517.    The  references 
do  not  appear  to  sustain  the  text. 

Read,  jun.,  in  reply. 

AVent  into  the  whole  ground,  but  his  remarks  are  in  substance  re- 
ported in  his  colleague's  argument.  He  noticed  Mr.  Rogers'  objec- 
tion that  David  Porter  was  shown  to  be  a  co-tenant  with  the  plff. 
and  ought  to  have  been  joined,  but  the  court  stopt  him  on  this  point,, 
and  said  that  this  matter  ought  to  have  been  pleaded  in  abatement. 

Mr.  Read  admitted  that  the  deed  or  agreement  between  Rice  and 
Veach  could  not  operate  as  a  release,  but  he  insisted  that  it  was  matter 
of  evidence  confirmatory  of  the  previous  several  holding,  which  he  in- 
sisted was  proved.  We  have  proved  that  the  marsh  was  in  two  lots; 
the  Rice  lot  and  the  Jones  lot,  then  belonging  to  Veach.  They  had 
been  so  held  for  at  least  nineteen  years.  In  1809  Rice  and  Veach 
executed  a  deed  dividing  the  upland  and  fixing  on  the  dividing  line, 
and  agreeing  to  release  to  each  other' </?e  marsh  lots,  evidently  referring" 
to  the  lots  as  they  had  theretofore  been  held.  There  was  no  necessity 
for  inserting  in  the  deed  a  more  particular  description  of  the  dividing 
line,  for  it  referred  to  two  distinct  lots,  long  held  and  known  as  such, 
and  they  agree  mutually  to  release  to  each  other  all  interest  in  these 
lots.  And  it  is  not  important  whether  this  shall  operate  by  way  of 
release,  confirmation  or  otherwise,  so  that  it  effect  a  severance,  or  ac- 
knowledges a  previous  several  holding  of  the  land. 

The  Chief  Justice  (Clayton,)  in  charging  the  jury. 

Traced  the  descent  minutely  from  Patrick  Porter  and  the  inter- 
mediate conveyances,  and  showed  that  the  title  to  one-half  of  the 
marsh  was  in  the  plff.,  and  to  the  residue  in  deft.  He  then  stated  the 
question  to  be  whether  there  had  ever  been  a  partition,  either  actual, 
or  such  a  holding  as  would  amount  in  law  to  a  partition.  It  has  been 
thrown  out  in  the  debate  that  a  partition  by  parol  might  even  now  be 
sufficient,  but  we  apprehend  that  since  the  statute  of  frauds  a  parti- 
tion to  be  valid  must  be  in  writing.  The  construction  that  the  court 
put  upon  the  deed  between  Rice  and  Veach  is,  that  it  did  effect  a  par- 
tition in  relation  to  the  upland,  for  it  marked  and  defined  the  hold- 
ings; but  there  is  nothing  in  the  deed  itself  from  which  you  could 
collect  what  portion  or  part  of  the  marsh  either  of  the  contracting 
parties  was  thenceforth  to  hold  in  severalty,  nor  did  it  distinctly  refer 
to  previous  holdings,  so  as  to  fix  which  lot  should  be  Rice's  and  which 
Veach's.  The  terms  too  seem  to  imply  the  contemplation  of  a  subse- 
quent division.  We  are  therefore  of  opinion  that  this  deed  amounts 
only  to  an  agreement  to  divide  the  marsh,  and  is  not  an  actual  di- 
vision. The  jury  will  perceive  the  importance  of  this  point;  for,  if 
the  possession  has  not  been  severed,  the  plff.  and  deft,  are  tenants  in 
common,  and  this  action  cannot  be  sustained;  for  one  tenant  in  com- 
mon cannot  maintain  trespass  against  his  co-tenant,  except  under 
peculiar  circumstances,  as  where  there  has  been  a  destruction  of  the 
thing  held  in  common,  or  after  a  recovery  in  ejectment,  &c. 

But  the  plff.  considers  that  he  has  proved  a  several  holding  long 
enough  back  to  satisfy  you  that  there  was  a  partition  between  Por- 
ter and  Jones,  and  he  has  proved  a  several  holding  by  Evan  Rice 


Randel,  Jun,  vs.  Cues.  &  Del.  Caxal  Company.         151 

and  his  descendants  for  eighteen,  nineteen  or  twenty  years,  and  for 
ten  years  since,  a  disturbed  possession.  We  leave  the  evidence  on 
this  subject  with  the  jury,  remarking  that  where  land  descending  from 
a  common  ancestor  is  held  a  part  by  one,  and  another  part  by  another 
heir,  without  either  interfering  witli  the  other  for  so  long  a  period  as 
twenty  years,  it  would  be  strong  evidence  of  a  partition. 

Verdict  for  plaintiff. 

R.  H.  Bayard  and  Read,  jun.,  for  plaintiff. 

Rogers  and  /.  M.  Clayton,  for  defendant. 


I 


JOHN  RANDEL,  jun'r.  vs.  The  PRESIDENT,  DIRECTORS  and 
COMPANY  of  the  CHESAPEAKE  and  DELAWARE  CANAL. 

Any  agreement  under  seal  is  a  covenant. 

The  language  of  a  covenant  in  a  contract  between  several,  is  to  be  applied  to 

the  party  to  which  it  reasonably  belongs. 
The  whole  contract  is  to  be  taken  together. 
That  construction  is  to  be  prefered   which  will  make  the  whole  instrument 

operative. 
If  there  be  ambiguity,  the  words  of  a  covenant  are  to  be  taken  most  strongly 

against  the  covenantor. 
]n  covenant,  the  breach  may  be  assigned  in  the  words  of  the  covenant,  where 

such  general  assignment  amounts  to  a  breach. 
Less  particularity  is  required  where  the  matter  rests  in  the  knowledge  of  the 

other  party. 
Enough  must  be  placed  on  the  record  to  show  that  the  covenant  is  broken,  and 

that  the  plaintiff  has  a  cause  of  action. 
After  argument  on  general  demurrer,  and  the  opinion  of  the  court  delivered, 

leave  to  withdraw  the  demurrer  and  plead  over  refused. 

Covenant.  Demurrers  to  the  seventh  and  eighth  counts  of  the 
narr. 

These  demurrers  were  argued  at  the  present  term  by  Frame,  At- 
torney General,  and  Walter  Jones,  for  the  def ts.,  the  demurrant ;  and 
J.  M.  Clayton,  C.  J.  Ingersoll,  Rogers  and  Read,  jun.,  for  the  plaintiff. 

The  narr  set  out  the  following  contract  between  Randel  and  the 
Canal  Company,  the  whole  of  which  is  inserted  here  for  future  re- 
ference, though  a  part  only,  two  clauses  thereof,  were  immediately 
involved  in  the  present  argument. 

"  Articles  of  agreement  made  and  concluded  the  twenty-sixth  day 
of  March,  in  the  year  1824,  between  John  Randel,  junior,  of  the  state 
of  New-York,  civil  engineer,  of  the  first  .part,  and  the  Chesapeake  and 
Delaware  Canal  Company  of  the  second  part. 

The  party  of  the  first  part  for  himself,  his  executors,  administrators 
and  assigns,  covenants  and  agrees  to  and  with  the  party  of  the  second 
part,  to  excavate,  embank  and  construct  in  a  good  substantial  and 
workmanlike  manner,  all  that  part  of  the  Chesapeake  and  Delaware 
canal  included  in  sections  number  one,  two,  three,  four  and  that  part 
of  section  number  five,  which  extends  from  station  number  two  hun- 
dred and  ninety-eight,  to  number  three  hundred  seventy-three,  as  the 
same  are  protracted  and  defined  on  a  certain  map  and  estimate  pre- 
pared by  the  party  of  the  first  part,  and  now  in  the  possession  of  the 
party  of  the  second  part,  together  with  the  proposed  harbor  on  the 


152        Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

river  Delaware.  The  canal  and  banks  to  be  so  constructed,  that  the 
water  may  be  in  all  places  at  least  sixty  feet  at  the  surface  or  top 
water  line,  and  thirty-six  feet  at  the  bottom  in  width,  and  eight  feet 
deep.  Each  bank  to  be  raised  one  foot  above  the  top  line  of  the  high- 
est tide  heretofore  known,  except  on  the  summit  level,  where  it  shall 
be  from  two  to  seven  feet  above  the  water  line :  and  such  a  slope  shall 
be  preserved  on  the  inner  side  both  above  and  below  the  water  line 
(not  exceeding  two  feet  base  to  one  foot  perpendicular  elevation,)  as 
the  engineer  of  the  company  for  the  time  being,  shall  direct.  The 
towing  path  shall  be  on  the  north  side  of  the  canal :  its  upper  surface 
twelve  feet  wide:  the  upper  surface  of  the  bank  on  the  opposite  side 
of  the  canal  from  the  towing  path,  six  feet  wide.  Both  banks  shall  be 
constructed  of  the  best  earth  which  the  adjoining  excavation  will  give, 
in  a  workmanlike  manner  with  a  slope  on  their  outer  sides,  not  less 
than  that  hereinbefore  prescribed  for  their  inner  sides. 

(Covenant  to  pay.)  And  the  party  of  the  second  part  agrees  to  the 
party  of  the  first  part  his  executors,  administrators  and  assigns  for 
completely  performing  this  contract  the  sums  which  are  stated  as  the 
cost  thereof  in  the  said  estimate  of  the  party  of  the  first  part,  under 
the  conditions  and  provisions  expressed  in  the  annexed  schedule 
(semi  monthly.)  payment  to  be  made  every  fortnight  according  to 
the  said  schedule  for  the  work  which  the  engineer  of  the  Company 
shall  certify  to  have  been  actually  done  by  the  party  of  the  first  part. 
(Ten  per  cent,  for  contingencies.)  Provided  however  that  no  part  of 
the  amount  of  ten  per  cent  specified  in  the  estimate  aforesaid  to  be  for 
contingencies  on  the  whole  contract  shall  be  payable  to  the  party  of 
the  first  part  until  the  final  and  absolute  completion  on  his  part  of  the 
whole  of  this  contract.  (In  case  of  Randel's  death.)  And  in  case  of 
the  death  of  the  party  of  the  first  part  pending  this  contract,  and  be- 
fore default  or  delinquency  on  his  part,  and  this  contract  is  thereby 
determined,  such  portion  of  the  said  ten  per  cent,  shall  be  paid  to  his 
representatives,  as  upon  consideration  of  all  circumstances  of  difficul- 
ties overcome  by  him  and  future  security  of  the  company  for  the  com- 
pletion of  the  unfinished  residue  at  the  cost  specified  in  the  said  esti- 
mate shall  be  just  and  reasonable.  The  certificate  of  the  principal 
engineer  of  the  company  for  the  time  being  on  this  point  to  be  final 
and  conclusive  between  the  parties.  (Revision  of  prices.)  The  ob- 
ject of  the  parties  being  to  fix  such  a  rate  of  payment  as  to  secure  the 
company  against  future  delinquency  and  at  the  same  time  enable  the 
contractor  to  make  progress  in  his  work;  it  is  further  agreed,  that  it 
shall  be  competent  to  the  parties  at  any  time  between  the  first  and 
seventh  of  June  next  to  revise  and  remodel  the  schedule  annexed  and 
change  the  rate  of  payment;  in  case  of  difference  of  opinion  between 
the  parties  as  to  the  proper  revised  prices  the  engineer  of  the  com- 
pany for  the  time  being  shall  be  an  umpire,  and  his  certificate  on  the 
matter  final  and  conclusive.  If  the  schedule  is  not  so  revised  the 
prices  therein  stated  shall  be  final  and  established. 

(Inspection  covenant.)  And  the  said  works  during  their  progress 
shall  be  carefully  examined  and  inspected,  and  to  prevent  misunder- 
standing and  disputes  it  is  hereby  agreed  that  Benjamin  Wright,  es- 


I 


tANDEL,    J  UN,    VS.    UHE8.    &    UEL.    CAXAL   COMPANY.  153 

quire,  or  some  other  competent  engineer  to  be  selected  by  the  party  of 
tlie  second  part,  sliall  be  the  inspector  of  the  said  works  (Estimates 
&c.)  and  shall  estimate  the  number  of  cubic  yards  of  excavation  and 
also  of  embankment,  and  his  estimate  thereof  when  certified  to  the 
party  of  the  second  part  shall  be  final  and  conclusive  between  the  par- 
ties. (Abandonment. )  And  it  is  further  agreed  that  if  the  opinion 
of  the  engineer  in  chief  for  the  time  being  in  the  employ  of  the  party 
of  the  second  part  shall  be  that  the  party  of  the  first  part  refuses  or 
unreasonably  neglects  to  prosecute  this  contract,  such  engineer  may 
certify  the  same  to  the  said  party  of  the  second  part,  and  on  his  certifi- 
cate, the  said  party  of  the  second  part  shall  have  the  power  of  deter- 
mining that  he  has  abandoned  it ;  and  such  determination  shall  alto- 
gether exonerate  the  said  party  of  the  second  part  from  every  obliga- 
tion imposed  on  them  by  the  said  contract,  except  to  pay  as  aforesaid 
for  work  already  done ;  and  they  may  immediately  thereafter  proceed 
to  dispose  of  the  subject  matter  of  this  contract  in  the  same  manner 
as  if  this  contract  had  never  been  made;  (Deviations.)  and  the  party 
of  the  first  part  further  agrees  that  during  the  progress  of  the  work  he 
will  from  time  to  time  conform  to  such  deviations  from  the  present 
line  of  canal,  and  to  such  alterations  in  the  form,  slope  and  dimen- 
sions of  the  banks,  towing  paths  or  any  other  of  the  said  works,  as  the 
said  party  of  the  second  part  or  their  engineer  shall  direct;  provided 
that  the  said  party  of  the  second  part  shall  pay  to  the  said  party  of  the 
first  part  such  additional  sum  as  the  engineer  of  the  party  of  the  sec- 
ond part  for  the  time  being  shall  certify  to  be  a  fair  compensation  for 
any  additional  expense  incurred  by  the  said  party  of  the  first  part  by 
reason  of  such  deviations  or  alterations.  And  it  is  further  agreed  be- 
tween the  said  parties  that  whenever  this  contract  in  the  opinion  of 
the  inspector  hereinbefore  described  is  completely  performed  in  every 
respect  by  the  said  party  of  the  first  part  the  said  inspector  shall  certify 
the  same  in  writing"  under  his  hand  together  with  his  estimate  of  the 
number  of  cubic  yards  of  excavation  and  also  of  embankment:  and 
the  said  party  of  the  second  part  shall  within  thirty  days  after  notice 
of  such  certificate  pay  to  the  said  party  of  the  first  part  the  sum  which 
according  to  this  contract  and  the  said  estimate  shall  be  due  to  him  in- 
cluding therein  the  ten  per  cent,  reserved  for  contingencies  as  afore- 
said. 

(Prevention,  l^^ Breach  of  this  clause  assigned  in  the  8th  count.) 
And  it  is  further  agreed  as  aforesaid  that  in  case  the  party  of  the  first 
part  shall,  from  the  default  of  the  party  of  the  second  part  in  any, 
particular  be  prevented  from  pursuing  the  due  and  best  mode  of  ex- 
ecuting this  contract,  or  from  entering  upon  or  flooding  lands  for  that 
purpose,  the  pecuniary  damages  sustained  bv  him  in  consequence 
thereof  shall  be  certified  by  the  engineer  of  the  partv  of  the  second 
part  for  the  time  being;  and,  on  his  certificate,  which  shall  be  final  and 
<3onclusive  between  the  parties,  the  party  of  the  second  ])art  shall  make 
to  the  party  of  the  first  part  such  reasonable  compensation  and  allow- 
ance as  by  the  said  certificate  may  be  ascertained  and  fixed. 

(Time  covenant.  iW° Breach  of  this  clause  assigned  in  the  7th 
count.)  And  it  is  further  understood  and  agreed  as  aforesaid  that  the 
time  within  which  it  shall  be  incumbent  on  the  said  party  of  the  first 


154        Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

part  fully  to  perforin  and  complete  the  said  contract  shall  not  be  taken 
to  be  less  than  four  years  from  and  after  the  first  day  of  May  next 
ensuing,,  and  that  upon  the  completion  of  the  same  he  shall  deliver 
over  the  work  and  canal  into  the  exclusive  charge  of  the  said  party  of 
the  second  part  free  from  all  incumbrance  whatsoever. 

(Umpirage.)  And  lastly  to  prevent  and  avoid  all  litigation  be- 
tween the  parties  it  is  agreed  and  stipulated  that  in  case  of  dispute  or 
difference  of  opinion  between  the  said  parties  as  to  any  point  whatso- 
ever connected  with  or  in  any  manner  affecting  this  contract  or  the 
execution  thereof,  the  engineer  in  chief  for  the  time  being  in  the  em- 
ploy of  the  party  of  the  second  part  shall  be  the  umpire  and  judge 
between  the  parties,  and  his  certificate  in  writing  shall  be  a  final  and 
conclusive  determination  of  the  matter." 

Schedule  of  prices  referred  to  in  the  preceding  contract. 

For  section  No.  1.  from  the  river  Delaware  to  station  No.  8,  twenty- 
nine  chains  in  length  —  price  for  the  section  twelve  and  a  half  cents 
per  cubic  yard  —  ten  cents  only  per  cubic  yard  for  all  excavation  to 
within  two  feet  of  bottom,  and  the 'balance  when  the  section  is  com- 
pleted. 

If  the  contractor  shall  remove  the  surplus  earth  of  excavation  and 
place  it  in  proper  form  to  construct  a  harbor  according  to  the  plan 
proposed  by  him,  for  such  earth  so  removed  and  placed  he  shall  re- 
ceive three  cents  additional  per  cubic  yard,  and  when  the  same  shall 
be  secured  by  stone  he  shall  receive  for  every  cubic  yard  so  placed  and 
secured  one  cent  further  additional. 

For  section  No.  2,  from  station  No.  8,  to  station  No.  24  —  thirty- 
two  chains  in  length  —  price  for  the  section  fifteen  cents  per  cubic 
yard;  fourteen  cents  only  per  cubic  yard  for  all  excavation  to  within 
two  feet  of  bottom  and  the  balance  when  the  section  is  completed. 
All  the  surplus  earth  of  excavation  of  this  section  shall  be  deposited 
in  such  places  as  shall  be  directed  to  form  a  harbor  as  mentioned  in 
section  No.  1.  For  every  cubic  yard  of  earth  so  deposited  he  shall  re- 
ceive four  cents  additional,  and  when  secured  Avith  stone  he  shall  re- 
ceive the  further  sum  of  one  cent  additional. 

For  section  No.  3.  From  station  No.  24  to  station  No.  166,  at  St. 
George's  milldam,  two  hundred  and  eighty-four  chains  in  length  — 
price  for  the  section  twelve  and  a  half  cents.  For  all  earth  excavated 
and  placed  in  bank  as  required  to  within  two  feet  of  bottom,  eight 
cents,  and  when  any  half  mile  is  completed  the  balance  is  to  be  paid. 

Note.  The  contractor  shall  at  all  times  excavate  to  the  bottom  if 
in  the  opinion  of  the  committee  of  works  it  can  be  done  with  good 
economy. 

For  all  drains,  extra  embankment  according  to  the  project  of  Mr. 
Eandel,  the  prices  to  be  paid  from  time  to  time  to  be  those  estimated 
and  reported  by  him  it  being  understood  that  the  work  on  back  drains 
is  to  be  paid  only  for  the  part  finished,  and  on  embankment  as  it  is 
made  allowing  reasonably  for  settling  fully  and  becoming  more  solid 
and  permanent. 

For  section  No.  4.  from  station  No.  166  to  station  No.  298. 

chains  in  length,  price  for  the  section  fourteen  cents  per  cubic  yard. 
All  earth  excavated  and  removed  so  as  to  form  part  of  towing  path 


Eandel,  Jdn.  vs.  Ches.  &  Del.  Canal  Company.        155 

through  the  millpond,  fourteen  cents  per  cubic  yard  —  and  all  other 
earth  excavated,  but  not  so  removed  for  the  constructing  of  the  towing 
path  unless  excavated  from  within  two  feet  of  the  bottom,  eleven 
cents  per  cubic  yard  and  the  balance  on  the  completion  of  the  section ; 
if  excavated  from  within  two  feet  of  the  bottom  though  not  used  for 
towing  paths,  fourteen  cents  per  cubic  yard. 

For  section  No.  5,  from  station  Xo.  298  to  station  Xo.  273,  

chains  in  length  —  price  for  the  section  cents  per  cubic  yard. 

For  all  earth  removed  from  surface  to  ten  feet  deep  sixteen  and  seven- 
tenths  cents  per  cubic  yard. 

below  10  not  exceeding  20  feet  deep  22^ 

per  cubic 
vard. 


20 

30 

28 

30 

40 

33^ 

40     " 

50 

39 

60 

60 

44^ 

60 

70 

50 

70  and  downwards 

61  1-10  , 

I 


It  is  understood  that  this  graduation  of  price  is  made  expressly  to 
conform  to  the  difference  in  labor  and  to  be  so  estimated  when  done 
as  that  the  whole  excavation  of  this  section  shall  not  exceed  twenty- 
five  cents  per  cubic  yard  for  the  whole  section.  In  order  to  induce  the 
contractor  to  remove  the  earth  as  much  as  possible  by  dirt  boats  so  as  to 
form  from  the  excavated  earth  a  good  towing  path  on  St.  George's  mill- 
pond  twelve  feet  wide  on  top  and  with  proper  slopes  it  is  agreed  that 
in  addition  to  the  prices  above  st<ited  for  excavation  there  shall  be  al- 
lowed for  the  first  ten  feet  thirteen  cents  per  cubic  yard  of  earth  so 
deposited  where  there  is  a  deficiency  of  excavations  to  form  the  towing 
path;  and  for  the  earth  between  ten  and  twenty  ie^t  five  cents  for 
every  cubic  yard  of  earth  so  removed  and  deposited :  provided  that  in 
no  case  shall  any  earth  be  so  estimated  as  to  make  the  whole  excava- 
tion when  done  to  exceed  twentA'-five  cents  per  cubic  yard,  including 
all  deposited  in  the  millpond.'' 

The  seventh  count  of  the  narr  after  setting  out  the  contract,  as- 
signed a  breach  of  the  following  clause : 

"  And  it  is  further  understood  and  agreed  as  aforesaid,  that  the 
time  within  which  it  shall  be  incumbent  on  the  said  party  of  the  first 
part,  fully  to  perform  and  complete  the  said  contract,  shall  not  be 
taken  to  be  less  than  four  years  from  and  after  the  first  da}-^  of  May 
next  ensuing." 

(7th  Breach.)     The  breach  was  assigned  in  the  following  words: 

"  Nevertheless  the  said,  The  Chesapeake  and  Delaware  Canal  Com- 
pany did  on  the  first  day  of  October,  A.  D.  1825,  to  wit:  at,  &c.,  and 
on  the  fifth  dav  of  Jime  A.  D.  1824,  and  on  divers  other  days  and 
times  between  the  dav  of  the  date  of  the  said  articles  of  agreement, 
and  the  day  of  brinjjing  this  suit,  to  wit,  at.  &c.,  take  the  time  within 
which  it  should  bp  incumbent  on  the  said  John  Eandel.  jun.,  fullv  to 
perform  ard  comnlpte  the  said  contract,  to  be  less  than  four  years  from 
ind  after  the  first  dav  of  Mav  next  enpuino^  the  date  of  the  said  articles 
of  agrepr^'^nt :  and  so  the  s^id  John  Eandel,  iun.,  in  fact  saith,  that 
the  said  The  Chesapeake  and  Delaware  Canal  Companv,  have  not  kept 
:heir  said  covenant  so  by  them  made  as  aforesaid,  but  have  broken  the 
;^ame,  and  to  keep  the  same  with  the  said  John  Eandel,  jun.,  have 


156        Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

hitherto  wholly  neglected  and  refused,  and  still  do  neglect  and  refuse, 
to  the  damage  of  the  said  John  Eandel,  jun.,  of  four  hundred  thou- 
sand dollars  lawful  money,  &c.^^ 

(Demurrer.)  To  this  breach  the  defts.  demurred ;  after  setting  out 
the  deed  on  oyer :  "  which  being  read  and  heard,  they  the  said  defts. 
say  that  the  said  seventh  count  of  the  said  declaration  as  amended, 
and  the  matters  therein  contained,  are  not  sufficient  in  law  for  the 
said  John  Eandel,  jun.,  to  have  or  maintain  his  aforesaid  action 
thereof  against  them  the  said  defts.,  and  that  they  the  said  defts.  are 
not  bound  by  law  to  answer  the  same,  and  this  they  are  ready  to  verify ; 
wherefore,  by  reason  of  the  insufficiency  of  the  said  seventh  count  of 
the  said  declaration  as  amended  in  this  behalf,  the  said  defts.  pray 
judgment,  and  that  the  said  John  Eandel,  jun.,  may  be  barred  from 
having  or  maintaining  his  aforesaid  action  thereof  against  them,  &c. 
And  the  said  defts.  according,  &c.,  state  and  show  to  the  court  here, 
the  following  causes  of  demurrer,  that  is  to  say,  "  that  there  is  no  is- 
suable fact  presented  by  the  said  plff.  in  and  by  his  said  supposed 
breach  of  covenant  assigned  in  his  said  seventh  count,  and  that  it  is 
not  stated  or  set  forth  how  or  in  what  manner  or  particular,  or  by  what 
act  or  matter,  the  said  defts.  did  take  the.  time  within  which  it  should 
be  incumbent  on  the  said  John,  fully  to  perform  and  complete  his  said 
contract  to  be  less  than  four  years,  from  and  after  the  first  day  of  May 
next  ensuing  the  date  of  the  said  articles  of  agreement;  and  also  the 
said  seventh  count  is  further  in  other  respects  bad,  uncertain,  informal 
and  insufficient,"  &c.    Joinder  in  demurrer  in  the  usual  form. 

The  eighth  count  of  the  narr  assigned  a  breach  of  the  following 
clause : 

"  And  it  is  further  agreed  as  aforesaid,  that  in  case  the  party  of  the 
first  part  shall  from  the  default  of  the  party  of  the  second  part,  in 
any  particular,  be  prevented  from  pursuing  the  due  and  best  mode  of 
executing  this  contract,  or  from  entering  upon  or  flooding  lands  for 
that  purpose,  the  pecuniary  damage  sustained  by  him  in  consequence 
thereof,  shall  be  certified  by  the  engineer  of  the  party  of  the  second 
part  for  the  time  being,  and  on  his  certificate,  which  shall  be  final  and 
conclusive  between  the  parties,  the  party  of  the  second  part  shall  make 
to  the  party  of  the  first  part,  such  reasonable  compensation  and  al- 
lowances as  by  the  said  certificate  may  be  ascertained  and  fixed." 

(Sth  Breach.)    The  breach  was : 

"  Nevertheless,  although  the  said  John  Eandel,  jun.,  was  from  the 
default  of  the  said  The  Chesapeake  and  Delaware  Canal  Company, 
prevented  from  pursuing  the  due  and  best  mode  of  executing  the  said 
contract,  to  wit,  on  the  first  day  of  October,  A.  D.  1825,  and  on  divers 
other  days  and  times  between  the  date  of  the  said  articles  of  agree- 
ment, and  the  day  of  bringing  this  suit,  to  Wit,  at  Newcastle  county 
aforesaid,  the  pecuniary  damage  sustained  by  the  said  John  Eandel, 
jun.,  in  consequence  thereof,  hath  not  been  certified  by  the  engineer 
of  the  said  The  Chesapeake  and  Delaware  Canal  Company  for  the 
time  being,  to  wit,  at,  &c.  And  so  the  said  John  Eandel,  jun.,  in  fact 
«iaith,"  &c.  (as  in  the  last  breach.) 


p 


Eandkl,  Jun.  vs.  Cues.  &  Del.  Canal  Company.         167 


(Demurrer.)  The  demurrer  to  this  count,  after  setting  out  the  deed 
on  oyer,  proceeds :  "  which  being  read  and  heard,  they  the  said  defts., 
say  that  the  said  eighth  count  of  the  said  declaration  as  amended,  and 
the  matters  therein  contained,  are  not  sufficient  in  law,  for  the  said 
John  Kandel,  jun.,  to  have  or  maintain  his  aforesaid  action  thereof 
against  them  the  said  defts.,  and  that  they  the  said  defts.  are  not 
bound  by  law  to  answer  the  same,  and  this  they  are  ready  to  verify; 
wherefore,  by  reason  of  the  insufliciency  of  the  said  eighth  count  of  the 
said  declaration  as  amended,  in  this  behalf  the  said  defts.  pray  judg- 
ment, and  that  the  said  John  Randel,  jun.,  may  be  barred  from  hav- 
ing or  maintaining  his  aforesaid  action  thereof,  against  them,"  &c. 
And  the  said  defts.  according,  &c.,  state  and  show  to  the  court  here, 
the  following  causes  of  demurrer,  that  is  to  say,  "  that  it  is  not  stated 
in  the  said  supposed  breach  of  covenant  assigned  in  the  said  eighth 
count  of  the  said  declaration,  in  what  particular  matters  or  things 
the  alledged  default  of  the  said  defts.  consisted,  took  place  and 
existed ;  or  how  or  in  what  manner,  or  by  what  act  of  the  said  defts. 
the  said  John  was  prevented  from  pursuing  the  due  and  best  mode  of 
executing  the  said  contract ;  and  also  further,  the  said  eighth  count  is 
uncertain,  informal,  insufficient,"  &c.    Joinder  in  demurrer. 

These  pleadings  presented  the  two  issues  now  before  the  court. 
The  other  pleadings  in  the  cause  were  not  considered  or  adverted  to, 
except  so  far  as  they  bore  incidentally  on  the  present  discussion. 

Frame,  Attorney  General,  opened  for  the  defendants. 

The  argument  now  arises  on  the  demurrers  to  the  seventh  and 
eighth  counts  of  the  narr,  being  the  fourth  and  fifth  additional  counts. 
The  first,  after  setting  out  the  contract  by  its  substance,  alledges  that 
the  time  of  completing  the  contract,  should  not  be  less  than  four 
years,  and  assigns  as  a  breach,  that  the  defts.  the  canal  company,  did 
take  the  time  to  be  less  than  four  years.  To  this  there  is  a  general 
and  special  demurrer. 

We  contend  that  the  plff.  has  mistaken  the  nature  of  this  contract. 
The  argument,  therefore,  involves  a  construction  of  the  instrument. 
The  language  of  the  clause  is  that  "  it  is  further  understood  and 
agreed  as  aforesaid,  that  the  time  within  which  it  shall  be  incumbent 
on  the  said  party  of  the  first  part  fully  to  perform  and  complete  the 
said  contract,  shall  not  be  taken  to  be  less  than  four  years,  from  and 
after  the  first  day  of  May."  We  say  that  according  to  the  true  mean- 
ing of  this  clause,  it"  cannot  constitute  the  foundation  of  an  action  at 
the  suit  of  the  plff.  It  cannot,  according  to  its  inherent  principles. 
It  might  constitute  a  defence,  supposing  Randel  was  sued  for  not 
completing  the  canal  in  a  shorter  period,  but  it  cannot  be  the  ground 
of  action.  The  term,  take  the  time,  or  ''  the  time  shall  not  be  taken  " 
means  that  the  time  shall  not  be  deemed  or  understood  to  be  less  than 
four  years ;  and  in  this  connection  it  implies  that  Randel  should  have 
at  least  four  years  to  do  the  work ;  that  he  should  not  be  obliged  to  do 
it  in  a  shorter  period.  Now  how  is  this  to  form  the  basis  of  an  action 
at  his  suit?  A  freedom  from  obligation  on  his  part;  a  negative  ab- 
stract right  securing  him  against  any  attempt  to  compel  an  earlier 
completion  of  the  work;  but  not  susceptible  either  of  violation  or 
abridgment.     Suppose  Randel  actually  prevented  from  proceeding  in 


158        Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

the  work,  such  interruption  might  be  a  wrong,  and  might  on  other 
grounds  be  the  foundation  of  an  action,  but  what  relation  could  it 
have  to  this  clause  of  the  contract?  How  would  this  deem  or  take 
the  time  to  be  less  than  four  j^ears  ?  There  is  no  sequence  as  of  cause 
and  effect,  nor  any  connection  or  relation  between  them.  There  are 
many  clauses  of  contracts  that  will  not  bear  a  suit,  being  in  their 
nature  unsusceptible  of  actual  violation.  Such  may  be  said  generally 
are  those  of  a  mere  precautionary  nature,  prescribing  the  limits  to 
the  party's  own  obligation;  protecting  him  from  the  doing  of  any  act, 
or  the  doing  it  in  a  particular  manner  or  time;  such,  in  short,  as  the 
party  upon  whom  an  obligation  rests  introduces  to  explain  or  limit  that 
obligation,  and  which  being  in  their  own  nature  a  shield  and  defence, 
cannot  be  the  ground  of  active  suit.  They  cannot  be  violated,  and  they 
execute  themselves.  Let  us  see  by  what  acts  they  charge  this  company 
with  taking  the  time  to  be  less  than  four  years.  In  one  of  the  breaches 
the  declaration  of  abandonment  is  the  matter.  The  other  side  will 
contend  that  this  provision  is  intimately  connected  with  the  power  of 
abandonment,  and  prevents  the  exercise  of  that  power  within  the  four 
years.  This  we  den3^  The  power  of  abandonment  relates  to  the  prose- 
cution of  the  work;  this  clause  to  the  completion.  The  language  in 
the  one  case  is,  if  he  refuses  or  unreasonably  neglects  to  prosecute  the 
work ;  in  the  other  it  is  that  the  time  within  which  he  shall  be  obliged 
fully  to  perform  and  complete  the  work,  shall  not  be  less,  &c.  If  their 
construction  prevails,  it  prevents  the  company  from  declaring  the 
contract  abandoned  within  the  four  years,  however  negligent  Randel 
might  have  been  in  the  prosecution  of  the  work,  and  it  thus  repeals 
an  important  clause  of  the  contract,  and  makes  the  company  commit 
this  immense  work  into  the  hands  of  the  contractor,  without  any 
power  to  urge  him  to  its  completion. 

But  is  the  putting  an  end  to  the  contract  under  the  abandonment 
power,  taking  the  time  to  be  less  than  four  years?  Is  the  one  a  con- 
sequence of  the  other?  The  time  remains  and  exists  to  the  plff.  and 
though  the  company  might  prevent  his  doing  the  work,  and  might 
render  themselves  liable  in  damages  therefor,  the  plff.  still  had  the 
time,  and  could  not  be  compelled  to  do  the  work  in  less  time.  The 
ar^ment  is  that  because  the  company  declared  the  contract  aban- 
doned; this  act  of  dissolving  the  contract,  compelled  the  plff.  to  do 
the  work  in  a  less  period  than  that  stipulated  for.  Again,  they  say 
the  company  unlawfully  abandoned  this  contract,  and  thus  took  the 
time  to  be  less,  &c.  ^ow  if  this  abandonment  was  unlawful,  it  was 
merely  void  and  not  binding:  it  neither  prevented  the  progress  of 
the  work  nor  took  the  time ;  but  whether  lawful  or  unlawful,  it  took 
not  the  time,  nor  had  any  relatioin  to  the  time.  The  same  may  be 
said  of  the  allegation  that  the  companv  prevented  the  plff.  from  en- 
tering upon  lands,  &c.,  and  thus  took  the  time  to  be  less,  &c. 

It  thus  appears  that  this  clause  cannot  be  the  ground  of  an  action, 
for  in  its  own  nature  it  works  out  its  OAvn  enjoyment  bv  the  narty  for 
whose  security  it  was  introduced.  It  is  an  exemntion  from  obligation 
on  the  part  of  Randel.  The  law  would  imnlv  that  he  should  do  the 
work  in  a  reasonable  time;  this  clause  explains  that  such  reasonable 
time  shall  not  be  considered  less  than  four  years.    It  is  difficult  to  con- 


Eandel,  Jux.  vs.  Ches.  &  Del,  Cak^al  Company.        159 

<.'cive  how  this  explanation  can  be  the  subject  of  an  action  on  the  part 
of  Kandel.  So  of  the  allegation  that  the  company  contracted  with 
<Jlement,  Blackstock  and  Vansl^'ke,  and  so  took  the  time  to  be  less,  &c. 
How  ?    Does  a  contract  with  other  persons  force  Kandel  to  execute  his 

|:n  a  shorter  period  than  that  stipulated  for?  And  even  supposing  the 
.subsequent  contract  to  conflict  with  the  former,  and  that  Clement  & 
Oo.,  in  the  prosecution  of  theirs  interrupted  or  hindered  Eandel,  such 
interruption  might  be  a  wrong  and  actionable,  but  upon  no  principle 
of  construction  could  it  be  made  a  violation  of  this  clause  in  relation 
to  time. 

As  to  the  special  causes  of  demurrer.     There  is  no  issuable  fact 
.stated  by  which  the  defts.  took  the  time  to  be  less  than  four  years. 

The  breach  contains  only  conclusions  and  not  facts,  and  conclusions 
<3annot  be  pleaded.     Suppose  we  had  traversed;  what  would  the  plff. 
aave  proved  in  support  of  his  breach?    If  he  made  out  the  abandon- 
ment we  should  insist  that  it  did  not  prove  the  issue;  and  so  of  the 
contract  with  Clement  &  Co.     The  breach  should  state  premises,  not 
oonclusions;  facts  which  may  be  met  by  proof.    In  The  State  for  the 
■use  of  Bishop  vs.  Wilds'  Adinr.  ante  87,  it  was  decided  that  the  aver- 
ment in  the  narr  that  the  guardian  did  not  perform  his  duty  as  guar- 
<iian,  and  did  not  well  and  truly  pay  and  deliver,  &c.  (in  the  words  of 
^m  the  bond,)  was  too  general,  and  did  not  constitute  a  sufficient  breach. 
Second.  The  demurrer  to  the  eighth,  (or  fifth  additional)  count. 
This  breach  also  is  a  mere  general  denial  of  the  terms  of  the  con- 
tract, and  is  not  sufficient.     It  does  not  set  out  any  damage,  and  the 
breach  is  in  this  respect  defective;  for  if  no  damage  were  sustained, 
then  no  damage  could  be  certified.     The  contract  is  that  if  Eandel 
M.   should  be  prevented  from  pursuing  the  due  and  best  mode  of  executing 
WM  his  contract,  the  pecuniary  damage  sustained  by  him  in  consequence 
thereof,  should  be  paid  by  the  company  on  the  certificate  of  their  en- 
gineer.    The  consequential  damage  only  was  to  be  certified.     How 
then  could  there  be  a  breach  without  damage  actually  sustained;  and 
must  not  that  damage  be  averred?    The  breach  sets  out  that  though 
the  plff.  was  prevented  from  pursuing  the  due  and  best  mode,  &c.,  the 
engineer  did  not  certify  the  pecuniary  damage,  without  averring  that 
any  damage  was  the  consequence  of  such  prevention.     Again.     The 
plff.  was  prevented  from  pursuing  the  due  and  best  mode  of  executing 
his  contract.    Is  not  this  a  conclusion  ?    And  should  not  the  means  of 
prevention  be  stated  ?    Should  we  not  have  notice :  and  if  it  be  matter 
of  law  let  it  go  to  the  court.     The  jury  could  not  decide  such  ques- 
tions; if  it  arise  upon  facts  for  their  consideration,  why  are  not  the 
^  facts  stated  ?    So  much  for  the  special  causes  of  demurrer  to  the  eighth 
H  oount,  which,  however,  we  contend  would  be  fatal  in  general  demurrer. 
^m       But  as  to  the  general  demurrer,  or  construction  of  this  part  of  the 
P  contract.    The  count  supposes  that  the  company  engage  and  guarantee 
that  the  engineer  should  certify  the  damages ;  and  that  they  are  liable 
for  his  neglect  in  this  particular.     We  deny  that  this  is  the  contract. 
It  is  merely  a  mutual  submission  of  this  matter  to  the  engineer  as  an 
umpire  f6r  whose  conduct  neither  party   is   peculiarly  responsible. 
It  is  contrary  to  the  letter  as  well  as  the  spirit  of  the  contract  that 


160        Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

the  company  should  be  bound  for  the  acts  or  responsible  for  the  negli- 
gence 01  the  engineer.  "It  is  further  agreed  between  the  said  par- 
ties," not  that  the  canal  company  covenants  and  agrees  with  Randel. 
It  is  a  mutual  reference  of  the  matter  to  an  umpire ;  not  a  contract  by 
one  party  that  such  umpire  shall  do  certain  acts.  Again :  if  the  com- 
l)any  guaranteed  this  service  to  be  done  by  the  engineer,  the  word 
would  have  been  will  and  not  "  shall  *'  as  it  is.  Is  Randel  a  covenantor 
in  this  clause  or  not  ?  If  he  be,  then  the  company  cannot  be  liable  to 
this  suit.  He  is  equally  bound  with  them  for  the  acts  of  the  umpire, 
and  equally  liable  for  his  negligence.  Establishing  this,  that  there  is 
a  mutual  binding  and  a  common  umpire,  can  it  alter  the  case  that  such 
a  reference  or  umpire  is  the  engineer  of  the  company.  This  was  no 
l)art  of  the  engineer's  duty  as  such ;  quoad  hoc  he  was  not  the  agent  of 
the  company,  but  of  both  parties.  And  the  company  had  no  legal 
power  to  compel  him  to  this  duty.  Why  ?  Because  there  was  no  obli- 
gation on  him  as  engineer,  to  certif}-  these  damages ;  and  he  was  under 
no  obligation  to  the  company  by  reason  of  the  reference,  which  he  was 
not  equally  nnder  to  Randel.  The  one  had  no  more  control  over  him 
than  the  other.  I  exclude  now  all  idea  of  private  influence  which  the 
company  might  be  supposed  to  have  over  him,  for  this  is  not  the  legal 
power  I  sjDeak  of.  Then  I  say  that  the  court  will  not  in  a  doubtful 
case,  suppose  that  this  company  had  compelled  themselves  to  guaran- 
tee an  act  which  they  had  no  power  to  compel.  But  this  suit  itself 
proves  that  this  construction  is  not  correct;  for  if  the  amount  of  dam- 
ages be  referred  to  the  engineer,  the  question  of  what  damage,  and 
whether  any,  was  submitted  to  him.  If  he  has  not  certified  any  dam- 
age it  cannot  judicially  appear  to  this  court  that  there  was  any 
damage,  for  he  is  the  only  judge.  If  we  are  to  infer  any  thing  from 
the  want  of  a  certificate,  we  should  presume  that  the  engineer  had 
done  his  duty,  and  determined  that  there  was  no  damage. 

In  relation  to  deviations,  prices,  compensation,  prosecution  of  the 
work,  and  finally  all  matters  of  dispute,  the  engineer  was  made  the 
umpire.  This  shows  the  object  of  the  parties  in  relation  to  this  clause 
also. 

J.  M.  Clayton,  for  the  plaintiff. 

First.  The  clause  of  the  contract  declared  on  in  the  seventh  count 
does  amount  to  a  covenant,  and  a  covenant  that  may  be  sued  on. 

Second.  The  clause  in  the  eighth  count  is  not  a  mere  reference,  nor 
a  covenant  binding  equally  on  Randel  as  the  company;  but  a  covenant 
peculiarly  obligatory  on  the  company. 

If  this  be  not  so  what  is  the  meaning  of  that  clause  of  the  contract 
where  the  company  recognizes  an  obligation  for  other  purposes  than 
to  pay  for  work  already  done.  "  And  such  determination  shall  alto- 
gether exonerate  the  said  party  of  the  second  part,  from  every  obli- 
gation imposed  on  them  by  the  said  contract,  except  to  pay  as  afore- 
said for  work  already  done."  Now  take  up  the  whole  contract  and 
construe  it  upon  the  principles  laid  down  by  the  other  side,  and  no 
such  obligation  can  be  found.  But  here  is  a  distinct  recognition  of 
other  obligations,  which  must  arise  from  the  clause  now  in  dispute, 
or  they  cannot  be  found.     Ingenuity  can't  change  the  record;  so- 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.        161 

phistry  cannot  expunge  words;  and  if  the  construction  on  the  other 
side  can't  stand  with  the  whole  instrument  it  must  fall. 

Now  as  to  the  seventh  count  and  the  general  demurrer. 

The  Attorney  General  defines  "  take  "  to  be  to  hold,  agree  to,  defem 
or  fix  upon.  We  are  satisfied  with  this  definition.  He  admits  that  ac- 
cording to  this  definition,  the  meaning  of  the  clause  is  that  Kandel 
should  have  four  years  to  complete  the  work  in ;  and  that  the  company 
should  not  hold  or  deem  the  time  for  that  purpose  to  be  less:  we  as- 
sign a  breach  that  the  company  did  deem  or  hold  the  time  to  be  less, 
and  did  not  allow  him  the  four  years,  and  yet  they  call  this  a  legal 
abstraction  and  no  covenant.  I  do  not  contend  that  this  covenant  al- 
lowed Eandel  the  four  years  whether  he  was  progressing  towards  its 
completion  or  not,  but  only  that  it  allowed  him  that  time,  unless  the 
contract  was  abandoned  by  them  in  due  and  legal  form.  If  they  un- 
dertook to  judge  of  the  progress  of  the  work,  they  were  to  do  so  on  the 
legal  evidence ;  and  that  was  only  upon  the  certificate  of  the  engineer. 
Covenants  must  be  construed  so  as  to  support  each  other,  not  to  de- 
stroy each  other.  Upon  this  principle  we  can  reconcile  the  abandon- 
rnent  clause  with  the  clause  in  question.  The  company  were  author- 
ized to  nullify  or  abandon  the  contract  for  the  negligence  of  the  con- 
tractor. This  negligence  was  to  be  ascertained  in  a  certain  way,  and 
the  rule  of  evidence  was  prescribed.  They  were  constituted  the  judge 
of  this  matter  according  to  a  fixed  rule  which  must  be  followed.  If 
they  dissolve  the  contract  on  this  evidence,  it  avoids  all  the  covenants 
as  well  that  of  not  taking  the  time  to  be  less  than  four  years  as  the 
others,  except  only  the  covenant  to  pay  for  work  already  done :  but  if 
they  undertake  to  drive  off  the  contractor  and  prevent  his  proceeding 
in  the  work  withoiat  following  this  rule,  they  arbitrarily  take  the  time 
to  he  less  than  four  years,  and  thiis  break  their  covenant.  With  this 
construction  both  the  clauses  stand ;  without  it,  the  power  of  abandon- 
ment swallows  the  other;  or  it  merges  this.  We  do  not  then,  as  the 
counsel  supposed,  contend  that  the  company  could  not  take  the  time 
to  be  less  than  four  years,  even  though  Eandel  were  not  doing  any 
thing;  but  we  do  contend  that  they  have  but  one  process,  and  that  is 
by  abandoning  the  contract  as  stipulated  in  the  contract.  Negligence 
of  the  contractor  only  authorizes  their  interfering  to  stop  him;  no 
such  negligence  can  be  set  up  unless  it  has  been  certified  by  the  en- 
gineer ;  and  any  interference  on  their  part  to  prevent  the  execution  of 
his  contract  within  the  four  years,  unless  justified  by  this  certificate, 
is  unauthorized  on  the  part  of  the  company ;  is  taking  the  time  to  be 
less  than  four  years,  violating  the  contractor's  right  to  carry  on  the 
work  during  all  that  period,  and  a  breach  of  their  covenant  to  allow 
him  that  time.  The  counsel  savs  this  is  damnum  absque  injuria:  that 
if  they  drove  Randel  off,  it  was  not  taking  the  time  to  be  less,  &c- 
Surprising !  One  covenants,  even  according  to  the  gentleman's  own 
admission,  to  give  another  four  years  to  do  a  piece  of  work,  and  kicks 
him  off  the  next  day,  it  is  no  breach  of  his  covenant  but  a  mere  ab- 
straction. 

The  causes  of  special  demurrer  to  this  count. 

They  complain  that  it  is  not  shown  in  what  manner  they  took  the 

21 


162        Randel,  Jdx.  vs.  Ches.  &  Del.  Canal  Company. 

time  to  be  less,  &c.  I  answer  Me  are  not  bound  to  show  it.  Nothing 
is  better  established  than  that  you  need  only  negative  the  words  of  an 
affirmative  covenant ;  and  vice  versa,  where  the  facts  rest  in  the  knowl- 
edge of  the  other  party. 

Where  the  matter  lies  more  properly  in  the  knowledge  of  the  other 
party,  the  breach  may  be  assigned  generally  in  the  words  of  the  cov- 
enant. And  here  the  acts  by  which  they  took  the  time,  &c.,  are  in  their 
knowledge.  8  East  81,  4;  Step.  Plead.  414;  9  Co.  Rep.  60,  Bradshaw's 
case.    1  Wheat.  Selw.  375,  where  all  the  cases  are  collected. 

There  are  but  three  exceptions  to  this  rule,  where  the  breach  may 
not  be  assigned  in  the  words  of  the  covenant.  These  are  first,  where 
the  plff.  counts  on  a  covenant  for  quiet  enjoyment.  He  must  show 
that  he  was  evicted  by  lawful  title,  and  a  mere  general  assignment 
would  be  bad;  second,  in  covenants  against  incumbrances,  the  breach 
must  show  that  the  incumbrances  were  lawful;  and,  thirdly,  the  co- 
venantee in  covenants  of  warranty,  must  show  by  what  title  he  was 
evicted.  These  are  the  only  cases  in  which  the  breach  may  not  and 
ought  not  to  be  assigned  in  the  words  of  the  covenant.  Com.  Dig. 
Plead,  c.  45,  47;  1  Lord  Raymond  107;  1  Lutw.  329;  3  Mod.  69;  2 
Show.  472 ;  ditto  442 ;  1  Chit.  Plead.  326. 

The  case  in  2  Cro.  Jac.  486,  Mills  vs.  Astel,  is  not  law ;  it  has  been 
overruled  again  and  again.  See  8  East  81;  2  Show.  472.  442.  So. 
the  case  in  Douglass  214,  Jones  vs.  Williams,  has  been  repeatedly  over- 
ruled, and  is  not  regarded  as  law.    8  East  81 ;  1  Bos.  &  Pul.  642. 

Less  particularity  is  required  where  the  facts  lie  especially  in  the 
knowledge  of  the  opposite  party.  Steph.  Plead.  414;  Com.  Dig. 
Plead,  c.  26;  2  Mass.  Rep.  433;  Marston  .vs.  Hohhs.  Parsons,  Chief 
Justice,  notices  the  three  cases  already  mentioned,  as  exceptions  out 
of  the  general  rule. 

As  to  Bishop's  case,  that  was  an  action  of  debt  on  a  bond  with  a 
collateral  condition.  The  statute  of  William  and  our  own  statute  re- 
quired the  assignment  in  such  actions  to  be  very  special.  These  are 
governed  by  the  requirements  of  the  statute,  and  are  distinguished 
from  actions  of  covenant.  8  Johns.  Rep.  Ill ;  1  Lord  Raymond  478 ; 
Douglass  215;  1  Wheat.  Selw.  376;  Lord  Raymond  107,  (Sed  vide  1 
Chit.  Plead.  329.; 

I  come  now  to  the  demurrer  on  the  eighth  count.  The  question  is 
whose  covenant  is  that  contained  in  this  clause  ?  Is  it  a  covenant  at 
all ;  or  merely  a  reference  ?  In  the  first  place  I  say  that  the  construc- 
tion given  it  on  the  other  side  destroys  a  material  part  of  the  contract 
as  noticed  under  the  last  head.  My  idea  of  this  clause  is  that  it  is  a 
covenant  that  the  company^s  engineer  shall  certify  the  amount  of  dam- 
ages, and  that  this  is  as  much  their  covenant  as  the  agreement  to  pay 
the  amount  so  certified.  The  engineer  is  the  compan/s  agent ;  his  cer- 
tificate is  necessary  to  enable  the  contractor  to  get  one  cent,  and  yet 
they  contend  that  the  company  have  not  engaged  that  he  shall  make  this 
certificate,  and  that  his  refusal  to  do  so  is  only  the  refusal  of  an  arbi- 
trator and  the  subject  of  no  action  as  against  his  principal.  In  other 
parts  of  the  same  contract  where  the  parties  submit  any  matter  to  the 
engineer  as  a  common  umpire,  they  do  it  expressly  by  that  name,  but 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Compajty.        163 


Jiere,  different  language  is  used,  and  it  is  agreed  that  the  compan/s 
lingineer  shall  certify  the  damage.  Again,  if  this  be  a  reference,  what 
iS  to  be  done  with  the  express  and  sweeping  reference  at  the  end  of 
the  contract  of  all  matters  in  dispute  to  the  engineer  in  chief.  Now 
the  engineer  in  chief  was  a  different  person  from  the  engineer  for  the 
time  being,  or  resident  inspector,  and  if  the  first  be  a  reference,  there 
is  a  reference  of  the  same  thing  to  two  several  umpires.  And  if  they 
were  the  same  person  it  would  be  a  double  reference  of  the  same  sub- 
ject matter.  This  cannot  be  so;  the  first  is  not  a  reference  merely, 
but  a  covenant  by  the  company.  It  is  not  to  be  supposed  that  Randel 
or  any  man  of  ordinary  prudence,  would  refer  such  immense  interests 
to  the  mere  creature  of  the  other  party,  a  petty  surveyor,  not  even  the 
engineer  in  chief,  an  agent  appointed  by  them  and  removable  at  their 
pleasure,  without  some  security  that  he  would  act,  if  not  with  im- 
partiality, yet  so  that  he  might  derive  some  remuneration  for  his  labor. 
That  security  he  had  in  the  obligation  of  the  company  that  their 
officer  should  grant  some  certificate  whenever  damage  accrued.  Feeble 
to  be  sure  was  the  security,  but  the  very  weakness  of  this  protection 
shows  that  he  was  not  willing  wholly  to  abandon  himself  to  their 
tender  mercies.  However  much  the  contractor  might  have  been  in- 
terrupted and  delayed  by  the  company  from  the  causes  specified ;  and 
however  great  the  damage  that  might  thus  have  accrued,  he  could 
obtain  absolutely  no  redress  without  this  certificate ;  and  with  it  only 
such  as  that  officer  should  please  to  consider  a  compensation.  To  sup- 
pose that  the  company  did  not  engage  for  his  making  the  certificate, 
would  be  not  only  to  do  violence  to  the  contract  itself,  but  to  the  plain- 
est principles  of  common  sense  and  the  most  ordinary  exercise  of 
human  prudence. 

For  many  years  the  courts  have  been  leaning  in  favor  of  a  liberal 
construction  of  covenants,  (1  Bos.  &  Pull.  565,  574;)  here  the  court 
is  called  on  to  shut  up  a  covenant  and  turn  it  into  a  reference  upon 
principles  of  technicality  that  would  have  astonished  a  black-letter 
judge. 

As  to  the  special  causes  of  demurrer.  It  was  not  necessary  to  al- 
ledge  the  pecuniary  damage.  The  contract  is  not  that  when  damage 
should  arise  the  engineer  should  certify ;  but  that  when  Randel  should 
be  prevented  from  pursuing  the  due  and  best  mode,  &c.,  the  certifi- 
cate should  be  made  of  the  damage.  Obstruction  could  not  take 
place  without  damage,  and  the  contract  proceeds  on  that  admission. 
8  Johns.  86,  (111,)  Smith  et  al.  vs.  Janson.  As  to  aU  that  part 
of  the  Attorney  General's  argument  which  insisted  on  the  necessity 
of  our  setting  out  the  acts  by  which  the  company  prevented  Randel 
from  pursuing  the  due  and  best  mode  of  executing  his  contract,  I 
shall  not  reply  further  than  by  referring  to  the  authorities  heretofore 
cited  in  relation  to  the  assignment  of  breaches  in  the  words  of  the 
covenant. 

Before  the  plaintiff's  counsel  proceeded, 

Mr.  Jones,  for  the  defts.,  asked  leave  to  cite  some  additional  au- 
thorities on  the  subject  of  assigning  breaches. 

The  facts  charged  as  constituting  the  breach  must  be  plain;  they 
must  appear  to  the  court  to  be  such  that  if  true,  they  undoubtedly 


164        Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

constitute  a  breach.  We  shall  contend  that  there  are  no  special  ex- 
ceptions to  the  rule  of  assigning  breaches.  Every  case  must  depend 
on  its  own  circumstances.  The  breach  must  state  so  much  as  to 
give  the  other  party  notice  of  what  is  relied  on  as  a  breach;  the 
acts,  or  facts;  not  conclusions;  and  such  as  shall  appear  to  amount 
to  a  breach  of  the  covenant.  The  three  cases  mentioned  are  not 
exceptions  because  they  are  cases  of  warranty,  &c.,  but  because 
they  are  such  where  the  nature  of  the  covenant  requires  a  particu- 
lar specification  of  the  breach.  So  in  all  cases  where  the  covenant 
is  of  this  character.  The  old  distinction  between  setting  out  breaches 
in  actions  in  bonds  with  a  collateral  condition,  and  breaches  of  cove- 
nants, is  abolished.  There  never  was  any  distinction  in  reason,  and 
there  is  now  none  in  authority.  It  must  in  the  nature  of  things  be 
that  it  will  depend  on  the  nature  of  the  covenant  itself,  whether  a 
breach  merely  in  the  words  of  the  covenant  will  be  sufficient.  1  Chit. 
Plead.  329-30;  5  Bac.  Ah.  IS;  Pleas.  &  Plead.  7  Price  550;  9  do.  43 ; 
13  Petersdorf  Ahridg.  368,  (257;)  Comyn's  Rep.  228;  7  Petersdorf 
347. 

C.  J.  Ingersoll,  for  the  plaintiff. 

From  Bradshaw's  case  down  to  the  cases  in  8  Johns,  and  Mass. 
Rep.,  the  general  rule  has  been  that  if  the  covenant  be  general,  the 
breach  may  be  general.  If  this  be  an  exception  to  that  rule  it  is  for 
the  deft,  to  show  it.  The  breach  may  be  general,  especially  where 
the  knowledge  of  the  manner  of  it  is  in  the  other  party. 

To  the  cases  cited  by  Mr.  Jones  we  answer  that  the  matter  pleaded 
was  peculiarly  in  the  knowledge  of  the  party  pleading.  There  was 
a  necessary  fact  be  stated ;  and  the  principal  case  was  a  covenant  for 
quiet  enjoyment,  and  comes  within  the  excepted  cases. 

What  are  the  standards  of  a  good  breach?  First.  Notice  to  the 
party  of  the  matter  relied  on ;  not  of  the  evidence  to  prove  that  mai>- 
ter.  Second.  Notce  to  the  court.  Enough  must  be  placed  on  the 
record  to  bar  another  suit  for  the  same  cause. 

The  causes  of  demurrer  are  first,  that  there  is  no  issuable  fact 
pleaded.  We  say  "you  did  take  the  time  to  be  less  than  four 
years : "  and  "  you  did  not  furnish  a  certificate  of  damage  "  are  not 
these  issuable  facts?  But  they  inquire,  how  did  we  take  the  time? 
Mr.  Frame's  explanation  of  taking  the  time  to  be  less,  is  deeming  it 
to  be  less,"  &c.  I  agree  to  the  definition  and  say  you  deemed  the 
time  to  be  less  than  four  years,  contrary  to  your  covenant.  We 
can't  tell  them  how ;  if  it  be  a  corporal  act,  they  did  it ;  if  a  mental 
operation,  they  conceived  it;  one  or  the  other,  it  is  a  damage  to  us, 
a  breach  of  their  covenant,  and  the  manner  in  which  it  was  effected 
being  in  their  knowledge,  we  are  not  bound  to  state  the  evidence  by 
which  we  intend  to  prove  it.  And  as  to  the  certificate  of  damage. 
The  pivot  of  this  matter  is  the  obstruction.  If  Randel  was  prevented 
by  the  company  from  pursuing  the  due  and  best  mode  of  doing  the 
work,  the  damage  is  inevitable — it  results  of  course  and  need  not 
be  stated.  The  certificate  was  the  thing  covenanted  for,  and  the 
neglect  to  grive  the  certificate  is  the  breach. 

In  deciding  upon  the  general  demurrers,  it  is  only  necessary  to 
ascertain  the  meaning  of  the  contract ;  that  is,  the  intention  of  the 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.        165 

parties  as  expressed  by  the  contract.  It  may  properly  be  divided 
into  twelve  clauses: 

1st.  Eandel  is  to  do  the  work.     Here  he  is  the  covenantor. 

2nd.  The  company  is  to  pay  for  it.     Here  they  are  the  covenantors. 

3d.  The  agreement  for  revising  prices ;  which  is  a  mutual  covenant. 

4th.  The  covenant  for  inspection  of  work. 

5th.  The  ten  per  cent  damages. 

6th.  A  covenant  in  case  of  Handel's  death  in  relation  to  ten  per  ct. 

7th.  The  abandonment  clause. 

8th.  In  relation  to  altering  the  plan  of  the  canal  and  conforming 
thereto. 

9th.  Covenant  in  relation  to  payment  in  full  for  the  work  when 
finished. 

10th.  The  prevention  clause — now  in  issue. 

11th.  The  clause  relating  to  the  time  allowed  for  doing  the  work: 
also  in  issue. 

12th.  The  clause  of  umpirage. 

In  all  the  clauses  except  the  9  th  and  11th,  Randel  is  more  or  less 
placed  in  the  power  of  the  company's  engineer.  It  is  to  be  remarked 
that  the  company  acts  through  this  agent:  that  for  these  purposes 
they  are  identical — the  engineer  is  the  company.  We  regard  the 
company,  then,  in  stipulating  for  these  acts  of  their  engineer  as  en- 
gaging that  they  will  do  such  acts  by  their  engineer.  What  were 
the  respective  duties  of  the  parties.  Randel  was  to  dig  a  canal. 
The  company  were  to  furnish  the  ground  and  prevent  intrusion  or  in- 
terruption. By  whatever  means  then  Randel  was  interrupted  or  de- 
layed, damage  was  the  necessary  consequence,  and  the  only  question 
was  as  to  the  mode  of  ascertaining  the  amount  of  that  damage.  What 
was  the  contract  ?  The  company  kept  the  power  in  their  own  hands ; 
they  resolved  that  these  damages  should  be  fixed  only  by  their  own 
officer,  and  in  the  nature  of  things  as  well  as  in  the  language  of  the 
contract  they  engaged  he  should  certify  some  damage  whenever  dam- 
age accrued.  If  he  certified  only  one  dollar  for  a  hundred  Randel 
.vas  remediless,  but  they  were  bound  to  have  the  certificate  made. 
They  call  it  a  reference,  and  thus  set  up  a  new  tribunal  of  judgment. 
If  so  they  must  show  it.  If  Randel  has  relinquished  his  right  to  go 
to  a  jury  to  ascertain  his  damages;  and  committed  his  interests  to 
the  keeping  of  the  agent  of  the  company,  it  is  but  reasonable  the  com- 
pany should  be  bound  that  their  agent  should  do  that  without  which 
the  plff.  could  have  no  remedv.  If  it  be  not  so,  they  ought  to  show 
it  clearly.  To  suppose  that  Randel  should  give  to  this  engineer  the 
power  of  fixing  the  amount  of  damage,  and  bind  himself  to  seek  no 
redress  but  on  the  certificate  of  the  engineer,  without  anv  obligation 
on  the  company  to  cause  such  certificate  to  be  made,  would  be  to 
suppose  he  was  insane.  But  how  can  this  be  a  reference?  when  the 
same  subject  is  afterwards  expressly  referred  to  umpirage ;  and  when 
this  referee  cannot  but  report  against  the  company.  The  truth  is 
the  company  made  themselves,  through  their  agent,  the  judge  of  the 
damage  and  were  bound  to  certify  it. 

Then  as  to  the  clause  in  respect  to  the  time.  This  must  be  con- 
strued in  connexion  with  the  clause  authorizing  the  companv  to  avoid 
the  contract.     By  the  latter  the  company  or  their  engineer  is  made 


166        Randel,  Jun.  v».  Ches.  &  Del.  Canal  Company. 

the  judge  of  Randel's  diligence  in  prosecuting  the  work;  by  the  for- 
mer that  diligence  is  referred  to  time  and  the  company  agrees  not  to 
take  the  time  to  be  less  than  four  years.  While  then  Randel  is  pro- 
ceeding with  reasonable  diligence  in  reference  to  this  period  the  con- 
tract cannot  be  abandoned  or  the  company  violates  the  covenant  not 
to  take  the  time  to  be  less,  &c.  The  word  take  must  have  a  sensi- 
ble construction  referrible  to  the  subject  matter  of  the  contract  and 
the  connexion  in  which  it  is  used.  No  word  has  a  greater  variety 
of  significations.  Webster  has  four  columns  of  interpretations.  It 
means  here  to  ascertain,  consider,  juds'e  of,  or  deem  the  time. 

Oeorge  Read,  jr.,  for  the  plaintiff. 

The  first  question  to  be  settled  is,  is  this  a  covenant  in  relation  ta 
the  time?  There  is  no  magic  in  the  word.  Nothing  is  required  to 
make  a  covenant  but  a  seal.  Any  thing  under  seal  evidencing  an 
agreement  to  do  or  not  to  do  a  thing  is  a  covenant.  The  word  cove- 
nant need  not  appear.  Even  a  recital  to  an  article  of  agreement  has 
been  construed  into  a  covenant  when  the  intention  of  the  parties  ap- 
pears to  have  been  such.  1  Saund.  320;  Levinz.  274;  1  Sidf.  223; 
6  Viner  381 ;  2  Mod.  87 ;  8  Com.  Law  Rep.  373 ;  Saltoun  et  al.  vs. 
Houstoun  et  al.  The  inquiry  is  "  what  was  the  object  of  the  par- 
ties." If  this  amounts  to  a  covenant,  whether  it  be  expressed  as  a 
proviso,  exception  or  otherwise,  it  will  be  construed  as  such.  An 
agreement  on  the  part  of  the  plff.  may  be  construed  into  a  covenant 
on  the  part  of  the  deft,  if  such  was  the  intention.  1  Leonard  324. 
This  court  will  therefore  look  into  the  whole  agreement,  consider 
the  relation  of  the  parties,  and  the  subject  matter  of  the  compact, 
and  having  discovered  their  intention  will  construe  the  clause  in  ref- 
erence to  such  intention.  What  then  is  this  clause  in  relation  to 
time  ?  Is  it  a  stipulation,  an  agreement ;  does  it  confer  any  right,  or 
impose  any  obligation  ?  Has  it  in  fact  any  meaning ;  or  is  it  a  sense- 
less confusion  of  words ;  an  abstraction ;  a  mere  nothing.  The  court 
cannot  so  construe  it ;  they  can't  fail  to  con^der  it  an  agreement ;  and 
if  an  agreement  it  is  a  covenant.  The  law  makes  it  so,  and  regards 
not  whether  it  be  more  appropriately  called  a  reservation,  stipula- 
tion, proviso  or  agreement.  The  company  promise,  engage,  agree 
that  they  will  not  take  the  time  to  be  less  than  four  years.  They 
had  the  power  of  determining  the  contract  in  a  certain  manner;  this 
was  to  be  done  by  a  discretionary  act ;  they  had  to  interpose  an  agent 
in  the  exercise  of  this  discretion.  Append  to  this,  as  the  only 
protection  Randel  had,  they  stipulated  not  to  take  the  time  to  be  less 
than  four  years — that  is,  they  agreed  to  give  him  four  years,  preserv- 
ing at  the  same  time  the  privilege  of  abandoning  in  case  of  his  neg- 
ligence. Their  engineer  could  thus  measure  his  diligence  only  in 
reference  to  the  time  allowed.  This  then  is  an  important  clause;  a 
covenant  on  their  part.  The  legality  of  the  abandonment  is  not  now 
in  dispute  nor  is  it  to  be  considered ;  it  goes  to  a  jury  upon  other 
issues.  Without  setting  up  that  power  as  an  excuse  the  question  now 
is  whether  the  driving  Randel  off  within  the  four  vears  is  a  violation 
of  this  covenant  to  allow  him  four  years.  But  it  is  contended  that 
here  is  no  covenant  because  third  persons  were  interposed.  Third  per- 
sons !  The  agents  and  servants  of  the  company,  identified  fully  with 
the  company ;  stipulated  for  by  the  company,  and  responsible  to  the 


I 


Randel,  Jun.  is.  Cues.  &  Del.  CA^AL  Company.         167 

company.  In  relation  to  these  covenants  the  company  acts  necessa- 
rily by  its  agents,  measuring  work,  certifying  damage,  certifying 
negligence  &c.  and  the  agent  stands  in  place  of  the  company.  He  is 
identified  with  them,  and  they  responsible  for  him. 

As  to  the  special  demurrers.  Sir  James  Mansfield  says  in  relation 
to  these  points,  that  they  are  not  much  to  the  credit  of  the  law  as  a 
science.  The  breach  here  is  stated  in  the  very  words  of  the  cove- 
nant; which,  according  to  the  general  rule  on  the  subject,  is  suffici- 
ent. We  have  shown  the  only  exceptions  to  this  rule.  If  there  be 
other  exceptions  the  defts.  ought  to  show  them.  The  present  case 
falls  as  well  within  the  reason  as  the  letter  of  the  rule,  for  the  facts 
constituting  the  breach  are  within  the  defts.  own  knowledge.  This 
rule,  with  the  specified  exceptions,  has  been  recognized  in  the  Su- 
preme Court  of  this  country  so  late  as  1817.  4  Dallas  436;  2  Whea- 
ton,  46,  62. 

Eighths  count.  Is  this  a  covenant;  stipulation  or  agreement?  Is 
not  this  it;  that  upon  a  ministerial  act  to  be  done  by  their  agent, 
and  which  they  stipulate  shall  be  done,  the  company  covenant  to  pay 
Randel  the  amount  of  damages  to  be  certified  by  that  agent.  I  say 
ministerial  act;  within  the  line  of  his  duty  as  engineer.  He  was 
not  at  liberty  to  decide  but  in  a  certain  Avay;  nor  could  he  decline 
the  duty.  What  was  the  occasion  of  this  stipulation  ?  It  was  not  en- 
tered into  in  view  of  a  dissolution  between  them  and  Randel,  and 
the  hostile  attitude  subsequently  assumed.  At  the  time  of  the  con- 
tract difficulties  and  embarrassments  existed  between  the  company 
and  the  owners  of  lands  through  which  the  canal  was  to  pass  which 
threatened  to  impede  the  progress  of  the  work.  Randel  foresaw 
that  such  impediment  might  be  a  serious  evil  to  him,  and  being  un- 
able to  obviate  it  himself  he  protected  himself  under  the  agreement 
of  the  company  that  if  he  should  be  obstructed  by  their  disputes 
with  others  they  would  pay  him  the  pecuniary  damages  thereby  sus- 
tained by  him  to  be  certified  by  their  officer.  By  what  officer?  Not 
by  any  individual  fixed  on  between  them,  but  by  whomsoever  the 
company  might  have  on  the  canal  for  the  time  being  as  resident  en- 
gineer. Is  it  not  ridiculous  to  call  this  a  reference  to  umpirage  where 
each  party,  selecting  and  agreeing  upon  an  umpire,  reposing  confi- 
dence in  the  umpire,  agree  mutually  to  repose  on  his  good  faith  and 
be  bound  for  his  proper  action.  And  that  too  in  a  contract  providing 
in  another  part  for  precisely  such  a  reference  in  case  of  dispute. 

Rogers,  for  plaintiff. 

Important  results  depend  on  the  decision  of  these  demurrers;  for  it 
mav  be  that  if  agrainst  a  plff.  it  will  be  impossible  for  him  to  proceed. 
T  therefore  crave  the  indulgence  of  the  court  while  I  review  some  of 
ihe  aiithorities  and  nerhaps  co  over  some  of  the  crround  heretofore 
occupied  by  my  colleagues.  I  shall  first  consider  the  special  de- 
murrers:— And  the  question  on  them  is  whether  a  general  assignment 
affirming  an  act  stipulated  against  in  a  negative  covenant  is  a  suffici- 
ent breach.  In  assigning  a  breach  you  are  not  obliged  to  do  so  in 
the  words  of  the  covenant;  but  may  do  it  according  to  the  legal 
effect:  m  which  case  it  must  be  observed  that  the  breach  be  consist- 
ent and  accordina:  to  the  legal  import  of  the  covenant ;  and  that  it  be 
not  too  large.     Secondly.     You  may  assign  the  breach  in  the  words 


168        Handel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

of  the  covenant,  and  the  only  exception  to  the  rule  is  where  the 
denying  or  afiirming  the  words  of  the  covenant  does  not  necessarily 
amount  to  a  breach.  The  other  side  undertakes  to  extend  these  ex- 
ceptions, and  they  contend  that  the  law  is  the  same  with  respect  to 
actions  on  bonds  with  a  collateral  condition  and  actions  of  covenant. 
The  cases  undoubtedly  establish  a  distinction;  but,  if  this  distinction 
has  been  abolished,  the  rule  in  relation  to  covenants  has  been  extended 
to  bonds  and  not  restricted,  so  that  now  it  would  seem  a  general 
assignment  in  either  action  would  be  sufficient.  They  say  that  a 
more  particular  assignment  is  necessary  for  the  purpose  of  notice  to 
them  and  to  show  the  court  that  it  amounts  to  a  breach.  The  same 
objections  would  lie  in  every  case  and  were  taken  in  the  case  of  Gale 
vs.  Reed,  8  East.  81.  The  answer  is  that  notice  is  unnecessary 
when  the  facts  are  in  the  knowledge  of  the  other  side.  How  is  it 
on  the  authorities?  All  of  them  cited  on  the  other  side  either  fall 
within  the  general  rule  or  are  embraced  by  the  exceptions  which  we 
have  stated.  The  case  in  Comyn  was  on  a  covenant  for  quiet  en- 
joyment; and  so  was  the  case  in  P-etersdorf.  7  Price  was  a  cove- 
nant for  quiet  enjoyment  and  to  do  other  acts  for  the  better  secur- 
ing an  annuity.  In  9  Price  there  was  a  specification  of  an  act  of 
hindrance  which  the  court  decided  did  not  amount  to  a  hindrance. 
It  does  not  therefore  reach  the  general  principle.  Swift's  dig.  664; 
1  Salk.  139;  Wils.  Bac.  Ah.  cov't.  I.  p.  84:;  1  Bos.^  &  Pul.  642; 
Comyn' s  Rep.  228 ;  7  Petersd.  347 ;  7  Price  550 ;  9  Inst.  43 ;  2  Saund. 
178. 

The  general  demurrer.  Do  these  clauses  raise  an  agreement?  This 
they  deny  by  their  demurrer.  They  admit  the  fact  stated  and  deny 
the  law.  Notice  the  clause  "  and  such  determination  shall  exone- 
rate the  company  from  every  obligation  except  to  pay  as  afsd.  for 
work  already  done.'*  Xow  on  the  construction  contended  for,  where 
are  these  oilier  obligations?  There  is  here  a  distinct  recognition  of 
other  obligations  besides  the  payment  of  money  and  we  contend  that 
these  other  obligations  arise  from  the  clauses  we  have  declared  on. 
Now  suppose  this  contract  had  been  unlawfully  abandoned  by  the 
company  will  it  be  denied  that  Eandel  might  have  had  an  action 
against  them ;  and,  if  he  could,  upon  what  parts  of  the  contract  could 
he  have  sued  except  on  the  clauses  now  demurred  to.  And  as  to  the 
ten  per  cent,  reserved,  amounting  to  near  thirty  thousand  dollars, 
upon  what  could  be  found  an  action  for  that  but  on  these  clauses?  If 
he  had  finished  the  work,  the  certificate  of  the  engineer  was  to  de- 
termine the  price;  was  there  no  obligation  on  their  part  that  their 
officer  should  make  this  certificate,  and  had  he  no  redress  against  the 
company  in  case  of  his  refusal  to  do  so.  If  he  had  anv  it  was  on  these 
clauses  which  are  now  demurred  to  as  creating  no  legal  liabilitv.  8 
Mod.  190;  Doug.  518.  Covenant  by  members  of  an  association 
construed  an  individual  covenant.  17  Com.  Law  Rep.  241  (6 
Moore  199);  Construed  a  covenant  because  the  party  could  other- 
wise defeat  the  bond.  2  Mod.  260.  So  here  if  this  be  not  a  covenant 
of  the  companv  in  relation  to  their  enginf^er's  certificate,  thev  might 
deprive  "Randel  of  all  his  rights  under  the  instrument,  and  escape 
from  obligations  directlv  assumed  by  that  instrument.  The  rule  is 
that  where  the  interpretation  of  a  covenant  is  doubtful  it  shall  be 


II 


Kakdel,  Jun.  vs.  Ciiiis.  (!c  Del.  Canal  Lo.upany.         109 


I 


construed  most  strongly  against  the  covenantor.  1  New  Rep.  78;  1 
Belw.  370. 

Mr.  Jones,  for  the  defendants. 

The  objects  to  be  obtained  in  alledging  a  breach  are,  to  satisfy  the 
court  that  if  the  statement  of  the  plff.  be  true,  he  has  beyond  doubt  a 
cause  of  action:  to  confine  the  jury  to  a  certain  issue  and  not  permit 
them  to  wander  in  the  mazes  of  prejudice  or  opinion,  or  be  lost  in  the 
mist  of  uncertainty,  confused  by  the  multiplicity  of  subjects  brought 
to  their  view;  and,  thirdly,  to  furnish  the  party  deft,  with  reason- 
able notice  of  what  he  is  called  upon  to  defend.  ' 

I  think  the  other  side  have  made  some  mistake  in  their  division  of 
the  subject  into  causes  of  general  and  of  special  demurrer.  The  ol)- 
jections  we  have  taken  to  these  counts  are  all  sustainable  as  grounds 
of  general  demurrer  and  I  shall  so  treat  them.  I  divide  them  into 
objections  going  to  the  foundation  of  the  action,  denying  that  the 
contract  is  susceptible  of  founding  an  action  upon;  and  into  objec- 
tions to  the  present  mode  of  proceeding,  equally  fatal  however  to  this 
present  action.  Let  us  first  ascertain  the  precise  legal  effect  of  these 
clauses  of  the  contract.  I  admit  with  the  other  side,  that  any  agree- 
ment under  seal  is  a  covenant.  We  shall  not  contend  about  words, 
as  we  go  upon  a  view  of  the  spirit  and  intent  of  the  whole  contract 
in  denying  that  these  clauses  constitute  any  ground  for  an  action. 

The  plff.  in  this  case  is  the  principal  contractor.  He  was  to  do  a 
great  work;  the  company  were  to  pay  him,  and  to  pay  him  in  a  par- 
ticular manner.  Much  of  the  argument  has  proceeded  on  the  idea 
that  the  company  were  the  principal  contractors,  when  the  reverse  is 
true,  Randel  being  not  only  "  the  party  of  the  first  part  "  but  the  prin- 
cipal party  contracting.  This  only  way  in  which  the  company  is 
bound  to  pay  is  specified ;  it  is  the  law  of  the  parties.  In  the  Sth 
count  it  is  agreed  that  the  payment  shall  be  on  a  certificate  of  the 
engineer.  This  Mr.  Eandel  agrees  to  be  the  law  of  his  contract  and 
in  no  other  way  can  he  recover.  Xeither  in  a  court  of  law  or  equity. 
The  breach  implies  a  neglect  of  duty  in  the  engineer;  and  it  may  be 
that  an  action  would  lie  against  Kim,  or  equity  would  compel  him  to 
do  his  duty;  but  it  is  not  possible  for  them  to  get  behind  the  engi- 
neer and  bring  an  action  to  recover  damages  from  the  company  in 
any  other  way  than  on  a  certificate  of  the  engineer.  "No  court  can 
possess  jurisdiction  to  make  them  par  in  any  other  way. 

(N'otices  Andrews  vs.  Ellison  et  al.  17  Com.  Law  Bep.  24,  cited 
on  the  other  side;  and  Alcorn  vs.  Savage,  reported  in  the  note  to 
that  case.  Cites  the  case  of  Taylor  et  al.  vs.  Brewer  et  al.  1  Maiile 
&  Sel.  290,  as  establishing  the  principle  contended  for.  This  case 
was  not  read  by  Mr.  Jones,  but  he  stated  it  to  be  a  covenant  to  pay 
on  the  award  of  a  committee  and  decided  that  it  could  not  be  recov- 
ered otherwise. 

Is  it  competent  for  the  plff.  to  take  these  several  clauses  of  one 
contract  and  make  them  separate  covenants? 

Eeads  the  "  Brerention  clause.'/  Construes  it  a  covenant  to  pay 
what  the  engineer  awards.  He  is  the  umpire  or  arbitrator.  Eandel 
agrees  to  take  his  damages  in  that  wav  and  not  otherwise;  and  they 
each  agree  and  contract  that  the  damages  shall  be  certified  in  this 

22 


170        Bandel,  Jun.  vs.  Cniis.  &  Del.  Canal  Company. 

manner  and  that  such  certificate  shall  be  final  and  conclusive.  If  it 
be  the  duty  of  either  party  to  cause  the  certificate  to  be  made  it  was 
equally  the  duty  of  both;  the  stipulation  is  mutual.  Does  the  fact 
of  this  person  being  the  engineer  of  the  company  affect  this  relation? 
In  a  certain  sense  he  is  the  agent  of  the  company.  He  is  their  en- 
gineer— appointed  to  do  the  duties  of  an  engineer;  but  in  reference 
to  the  matter  now  in  controversy,  he  is  equally  the  agent  of  both 
parties.  If  it  be  impossible  to  make  the  person  who  in  his  general 
duties  is  the  agent  of  one  of  the  parties  an  umpire  in  a  particular 
matter  between  the  parties  what  is  to  be  done  with  the  last  clause  of 
the  contract  which  expressly  appoints  him  such  umpire  by  name? 
To  take  a  proper  view  of  the  contract  this  individual  must  be  regarded 
in  two  characters;  as  the  agent  of  the  company  in  some  respects, 
and  an  independent,  impartial  judge  and  arbitrator  in  other  respects. 
This  additional  character,  this  superadded  entity,  arises  from  the 
combined  action  of  the  canal  company  and  Randel.  He  is  the  mutual 
agent  of  the  parties,  and  each  is  equally  bound  for  his  conduct  as 
they  are  alike  bound  by  the  result  of  that  conduct.  Randel  indeed 
having,  the  greatest  interest  in  the  action  of  this  umpire  in  relation  to 
this  certificate  was  peculiarly  bound  to  see  that  such  certificate  was 
made.  Yet  they  call  him  the  agent  of  the  company,  and  quote  upon 
us  the  maxim  qui  facit  per  alvum  facit  per  se.  This  makes  it  a  re- 
ference by  both  parties  to  one ;  and  that,  as  they  say,  to  prevent  dis- 
putes between  them.  Strange  indeed  would  it  have  been  for  these 
parties  to  enter  into  an  important  and  narrowly  guarded  contract  and 
to  provide  for  the  settlement  of  disputed  and  doubtful  matters  by  a 
reference  to  one  of  the  parties  themselves.  Logicians  regard  this 
argumehtum  ad  absurdum  as  conclusive;  and  the  argument  on  the 
other  side  involves  no  less  an  absurdity.  The  truth  is,  here  the  umpire 
is  not  the  agent  of  either  party  but  of  both.  But  it  is  said  that  this 
cannot  be  a  reference  to  the  engineer,  because  there  is  a  subsequent 
reference.  If  this  be  so,  where  is  the  absurdity  ?  It  would  only  follow 
that  their  were  several  persons  appointed  to  make  the  same  adjudica- 
tion; or,  if  the  persons  be  the  same,  that  the  matter  would  be  cov- 
ered by  the  last  clause  of  reference.  But  the  matters  referred  in 
the  two  clauses  are  not  the  same :  and  if  they  were,  whether  the 
first  clause  made  the  reference  certain  or  not  it  is  covered  by  the  last 
and  is  thereby  referred. 

There  are  many  instances  of  covenants  on  which  a  breach  cannot, 
in  the  nature  of  things,  be  assigned.  Here  is  a  covenant  to  pay  the 
amount  of  the  certificate  and  that  the  certificate  itself  shall  be  con- 
clusive. The  last  is  as  much  a  covenant  as  the  first ;  a  mutual  cove- 
nant ;  but  it  is  an  executed  and  not  an  executory  contract,  and  cannot 
be  sued  on.     A  breach  cannot  be  predicated  of  it;  it  executes  itself. 

The  general  rule  in  relation  to  assigning  breaches  is  the  same  in 
every  contract  whether  under  seal  or  not;  and  in  tort  as  well  as  in 
contract.  What  is  the  breach  of  this  prevention  clause?  although 
he  was  prevented  from  pursuing,  &c.  Prevented,  how?  It  is  not  so 
good  as  a  general  allegation  that  the  deft,  had  not  performed.  They 
not  only  do  not  tell  us  the  particular  of  the  neglect  but  do  not  even 
inform  us  its  nature.  Take  the  case  of  a  clerk  who  had  given  bond 
not  to  commit  default ;  would  it  be  a  good  breach  that  he  did  commit 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.        171 

default  without  stating  the  nature  of  the  default  ?  And  the  gist  of  the 
breach  is  that  the  engineer  had  not  certified  the  pecuniary  damage 
when  they  have  not  even  averred  that  any  damage  was  sustained. 
But  they  say  that  damage  necessarily  arose  from  the  prevention ;  that 
it  is  inferable.  This  is  making  the  breach  argue,  which  it  cannot. 
The  facts  must  be  stated  and  not  inferred.  In  a  declaration  of  tres- 
pass stating  the  most  grievous  injury  you  must  aver  damage ;  and  the 
reason  is  that  facts  must  be  stated  and  not  left  to  inference  however 
palpable.  "  Damages  have  not  been  certified  " —  Non  constat  that 
damages  have  been  sustained. 

The  other  side  have  laid  down  a  general  rule  in  relation  to  assign- 
ing breaches  and  have  specified  three  exceptions.  I  deny  the  rule 
and  I  deny  the  specific  exceptions;  at  least  I  deny  that  they  are  ex- 
ceptions because  they  fall  within  a  certain  enumerated  class.  They 
are  exceptions  on  more  general  grounds  of  pleading,  more  general 
than  their  rule.  All  facts,  however  particular,  which  are  necessary 
to  constitute  the  breach  must  be  stated;  not  the  evidence  to  prove 
the  facts  but  the  facts  themselves.  The  deft,  must  be  notified  by  the 
breach  with  what  he  is  charged.  What  notice  is  it  to  say,  you  have 
prevented  me  from  pursuing  the  due  and  best  mode  of  executing  my 
contract?  Prevented,  how?  By  what  act;  by  what  neglect;  by  what 
manner  of  conduct?  The  facts  stated  must  be  such  that  taking  them 
to  be  true,  the  party  has,  necessarily,  a  cause  of  action;  and  they 
should  present  a  certain  issue.  True,  I  find  in  the  books  limitations 
and  exceptions ;  but*  not  exceptions  confined  to  particular  cases  but 
embracing  particular  principles  applicable  to  all  cases.  One  excep- 
tion is  that  where  the  statement  of  facts  would  lead  to  great  prolix- 
ity a  more  general  form  may  be  used,  but  still  the  party  must  state 
the  nature  of  the  breach :  after  all,  the  latitude  which  may  be  allowed 
must  depend  on  the  circumstances  of  each  case  referable  to  the  general 
principles  of  pleading  before  stated. 

They  answer  th6  case  from  Price  by  saying  it  falls  within  the  class 
of  exceptions  being  a  covenant  for  quiet  enjoyment.  It  does  not 
relate  to  lands  at  all;  and  proceeds  on  the  general  principles  stated. 
The  same  principles  are  well  stated  by  Mr.  Stephens  in  his  very  valu- 
able work  on  pleading.    Stephens  on  pleading  381. 

Seventh  count.     In  relation  to  taking  the  time : 

Here  was  a  contract  for  doing  a  very  large  work.  'No  time  was 
fixed  for  its  completion;  a  reasonable  time  would  have  been  implied 
by  the  law ;  instead  of  leaving  Randel  at  the  mercy  of  the  other  side 
in  determining  that  reasonable  time,  since  it  is  admitted  the  aban- 
donment power  would  have  authorized  them  to  do  so,  the  parties 
agree  to  fix  on  a  minimum  or  shortest  period  for  that  time.  How 
can  this  be  a  covenant ;  the  foundation  of  an  action  ?  It  is  a  protec- 
tion and  executes  its  own  purposes.  It  is  a  credit  given  to  him  of 
time,  and  can't  be  taken  from  him.  Suppose  an  attempt  to  compel 
the  completion  within  the  four  years;  it  must  fail,  for  he  holds  up 
the  contract.    It  is  not  a  thing  that  can  be  taken  from  him. 

The  breach  is  that  the  defts.  "  took  the  time  to  be  less,"  &c.,  not 
specifying  in  what  manner  nor  even  explaining  the  meaning  of  the 
phrase,  which  is  not  very  clear.  Johnson  gives  one  hundred  and  eigh- 
teen definitions  to  the  word  "  take ; "  Webster,  we  have  been  informed 


172        Randel,  Jun.  vs.  Ches.  &  Del,  Canal  Company. 

has  four  columns  of  interpretations.  For  my  own  part  I  cannot 
raise  in  my  mind  any  distinct  idea  of  taking  time  as  the  foundation 
of  an  action  for  the  breach  of  a  contract.  The  47th  definition  of 
Johnson  is  to  suppose;  to  understand  or  conceive  in  the  mind;  to 
conceive  in  thought  or  entertain  in  opinion.  How  can  this  be  a 
breach  of  contract?  Actus  non  mens  facit  reum  is  the  universal  rule 
of  law. 

But  supposing  this  taking  the  time  to  be  a  breach  of  contract  can 
there  be  a  stronger  instance  of  the  uncertainty  of  a  breach  which  is 
assigned  in  words  that  do  not  necessarily  imply  a  breach  but  which 
in  themselves  as  applied  to  a  contract  are  almost  unintelligible.  If 
the  phrase  has  a  meaning  that  would  apply  to  the  contract  so  as  to 
make  a  breach  the  party  ought  at  least  to  have  explained  that  mean- 
ing. If  it  alludes  to  a  corporal  act  then  that  act  should  have  been 
set  out.  If  words  be  equivocal,  having  a  meaning  innocent  as  well 
as  otherwise,  they  shall  be  taken  most  strongly  against  the  pleader. 

The  Court  took  time  to  consider  the  case,  and  intimated  that  they 
would  express  their  opinion  during  the  approaching  session  of  the 
Court  of  Errors  and  Appeals;  when 

The  following  opinion  of  the  court  was  delivered  by  Mr.  Justice 
Harrington : 

Harrington,  J.  The  questions  on  these  demurrers  involve  a  con- 
struction of  two  clauses  of  the  contract  entered  into  between  Randel 
and  the  canal  company,  and  also  several  points  in  relation  to  the 
manner  of  setting  forth  the  breaches  on  these  parts  of  the  contract. 

The  clause  declared  on  in  the  seventh  count  is  the  following : 

(Time.)  "  And  it  is  further  understood  and  agreed  as  aforesaid 
that  the  time  within  which  it  shall  be  incumbent  on  the  said  party 
of  the  first  part  fully  to  perform  and  complete  the  said  contract  shall 
not  be  taken  to  be  less  than  four  years  from  and  after  the  first  day  of 
May  next  ensuing." 

The  meaning  of  this  clause  is  the  subject  of  present  inquiry;  the 
object  with  which  it  was  introduced,  the  purpose  it  was  intended  to 
subserve,  and  the  obligations  which,  according  to  the  intention  of 
the  parties  contracting  to  be  gained  from  the  whole  instrument,  it 
imposed.  (Meaning  it  must  have;  an  agreement  it  expressly  pro- 
fesses to  be :  it  must  therefore  receive  a  sensible  interpretation  giving 
it  validity  and  force,  if  force  it  can  have  consistently  with  the  other 
parts  of  the  contract. 

At  the  first  reading  of  this  clause  it  is  apparent  that  it  was  designed 
to  afford  a  protection  to  the  person  who  was  about  doing  the  work; 
and,  though  the  expression  is  "  the  time  shall  not  be  taken,"  the 
meaning  is  clear  that  the  canal  company  shall  not  take  the  time, 
&c.  for  it  would  be  idle  to  make  Randel  stipulate  against  doing  an 
act  to  his  own  prejudice.  The  word  "  agree  "  in  a  deed  will  make 
a  covenant;  and,  though  in  the  connexion  it  is  applicable  to  both 
parties,  it  may  be  referred  to  that  party  upon  whom  the  doing  or  not 
doing  the  thing  agreed  upon  devolves.  Thus  in  Holder  vs.  Taylor 
4  Cruise  448.  If  a  lessee  for  years  covenants  to  repair,  &c.  provided 
always,  and  it  is  agreed,  that  the  lessor  shall  find  great  timber, 
this  is  a  covenant  on  the  part  of  the  lessor  to  find  the  timber,  and  not 


Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.        173 

merely  a  qualification  of  the  lessee's  covenant.  1  Roll.  Ahr.  518; 
6  Viner  381,  Tit.  Gov't.  C.  22,  23,  d^c.  Upon  the  same  principle 
the  agreement  here,  referred,  as  it  must  be  to  the  canal  company,  is 
a  covenant  on  their  part  that  they  will  not  take  the  time  within 
which  it  shall  be  incumbent  on  Kandel  to  complete  his  contract  to 
be  less  than  four  years;  or,  in  other  words,  that  they  will  allow  him 
four  years  for  the  completion  of  the  work. 

Thus  far  there  is  no  diflficulty  in  attaching  a  sensible  meaning  to 
this  part  of  the  contract;  but  it  is  said  that  this  cannot  be  the  true 
construction  since  the  canal  company  are  by  another  part  of  the  con- 
tract expressly  authorized,  on  a  certain  event,  to  declare  the  whole 
contract  to  be  abandoned,  and  thus  virtually  to  shorten  the  time  al- 
lowed by  this  construction  for  the  completion  of  the  work,  and,  as  the 
power  to  put  an  end  to  the  work  within  the  four  years  is  expressly 
given,  it  is  forcibly  argued  that  the  claiise  in  question  cannot  be  con- 
strued into  a  covenant  to  allow  the  four  years.  If  it  be  true  that 
these  parts  cannot  stand  together  we  must  look  for  some  other  mean- 
ing to  that  one  which  is  the  subject  of  construction ;  but  let  us  see  if 
they  cannot  be  construed  together  so  as  to  harmonize  and  each  have 
force,  ut  res  magis  valeat  quam  pereat. 

The  clause  in  the  contract  that  authorizes  the  canal  company  to 
annul  it  precedes  the  clause  now  under  consideration;  and  the  latter 
appears  to  be  rather  a  qualification  or  restriction  of  the  former.  That 
is  as  follows :  And  it  is  further  agreed  that  if  the  opinion  of  the  en- 
gineer in  chief  for  the  time  being,  in  the  employ  of  the  party  of  the 
second  part  (the  canal  company)  shall  be  that  of  the  party  of  the  first 
part  refuses  or  unreasonably  neglects  to  prosecute  this  contract,  such 
engineer  may  certify  the  same  to  the  said  party  of  the  second  part, 
and,  on  his  certificate,  the  said  party  of  the  second  part  shall  have  the 
power  of  determining  that  he  has  abandoned  it ;  and  such  determina- 
tion shall  altogether  exonerate  the  said  party  of  the  second  part  from 
every  obligation  imposed  on  them  by  the  said  contract,  except  to  pay 
as  aforesaid  for  work  already  done. 

This  affords  a  key  to  the  phrase  "  shall  not  take  the  time  "  &c.  about 
which  there  has  been  so  much  refining.  The  company  were  author- 
ized to  judge  of  the  diligence  of  the  contractor,  and  by  necessary 
consequence  to  determine  the  time  necessary  for  him  to  complete 
the  work.  In  reference  to  this  powir  they  add  a  covenant  that  they 
■will  not  take  the  time  for  this  purpose  to  be  less  than  four  years. 
And  a  very  reasonable  stipulation  is  was,  even  though  the  company 
still  retained  the  power  to  judge  of  the  diligence  of  the  contractor, 
and  to  turn  him  off  for  unreasonablo  negligence.  Time  enters  ma- 
terially into  this  question  of  diligence,  and  without  restriction  in 
point  of  time  the  company  might  have  required  of  Randel  such  ex- 
traordinary diligence  as  to  complete  the  work  in  a  much  shorter  pe- 
riod than  four  years.  The  provisions  stand  well  together.  The 
plff.  undertook  to  make  and  complete  a  certain  stipulated  portion  of 
the  canal,  and  the  defts.  undertook  to  compensate  him  for  the  work 
in  a  specified  manner.  It  was  a  work  of  great  labor  on  the  part  of 
the  plff.,  and  it  was  all  important  to  the  defts.  that  it  should  be  com- 
pleted in  a  reasonable  time ;  and  therefore  they  introduced  the  clause 
in  the  contract,  that  if  the  engineer  in  chief  should  be  of  opinion 
that   Randel   unreasonably   neglected   to   prosecute   the   work,    and 


174       Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

should  certify  that  opinion,  they,  the  canal  company,  should  have 
the  power  to  declare  the  contract  abandoned,  and  thus  to  annul  it. 
And,  on  the  other  hand,  as  the  M'ork  which  the  plff.  had  undertaken 
to  perform  was  one  of  great  labor,  requiring  large  expenditures  of 
money  and  the  necessary  consumption  of  considerable  time,  it  was 
deemed  proper  for  his  security  to  insert  the  understanding  and  agree- 
ment "  that  the  time  within  which  it  shall  be  incumbent  on  the  plff. 
fully  to  perform  and  complete  the  said  contract,  should  not  be  taken 
to  be  less  than  four  years  from  and  after,"  &c. 

This  is  obviously  not  a  mere  covenant  on  the  part  of  Randel,  that 
he  would  complete  the  work  within  the  time.  If  that  only  had  been 
the  intention  of  the  parties,  a  different  form  of  expression  would 
have  been  used.  The  defts.  say  it  is  not  a  covenant  on  their  part 
which  binds  them  to  any  thing.  AVhy  was  it  introduced,  forming 
as  it  does  a  distinct  clause  in  the  contract,  if  it  were  not  intended  to 
be  binding  on  the  party  using  the  language  to  some  efficient  purpose  ? 
It  is  obviously  not  the  language  of  Randel  to  the  canal  company.  If 
it  was  designed  merely  as  his  covenant  to  the  company  to  complete 
the  canal  within  four  years,  other  words  would  necessarily  have  been 
used,  such  perhaps  as  these:  it  is  agreed  that  the  said  John  Randel 
shall  complete  the  work  within  four  years.  On  the  contrary,  the 
words  emplo3'ed  in  the  instrument  are,  it  is  agreed  that  the  time 
within  which  it  shall  be  incumbent  on  him  fully  to  perform  and  com- 
plete the  said  contract,  shall  not  be  taken  to  be  less  than  four  years. 
Who  speaks  this?  The  canal  company.  Then  for  what  purpose  is 
it  spoken?  In  a  solemn  contract  under  seal,  we  are  not  to  reject 
these  words  as  senseless  and  having  no  meaning,  as  a  mere  abstrac- 
tion as  it  has  been  called  at  the  bar,  not  binding  upon  the  party  using 
them  to  any  efficient  purpose,  or  to  any  beneficial  end  to  the  party 
to  whom  they  are  addressed.  In  no  case  shall  words  be  rejected  as 
senseless,  if  a  meaning  can  be  attached  to  them  consistently  with 
the  intention  of  the  parties.  This  is  a  distinct,  separate  and  inde- 
pendent clause  of  the  contract.  We  may  therefore  infer  that  it  was 
deemed  important  by  the  parties  for  some  end  or  purpose.  They 
had  some  design  and  intention;  and  it  is  our  business  to  ascertain 
this  intention,  not  from  this  isolated  clause  only,  but  if  necessary 
from  the  whole  instrument,  and  according  to  the  reasonable  sense  of 
the  words.  If  there  be  any  anAiguity  then  such  construction  shall 
be  made  as  is  most  strong  against  the  covenantor,  for  he  might  have 
expressed  himself  more  clearly.  The  meaning  of  this  clause  we  con- 
ceive to  be  simply  this,  that  the  canal  company  undertook  not  to  do 
any  act  by  which  this  contract  should  be  taken  out  of  the  hands  of 
the  plff.  nor  would  declare  the  contract  abandoned,  nor  compel  him 
to  leave  the  work  short  of  the  stipulated  time,  unless  the  engineer 
should  be  of  opinion  and  certify  that  he  refused  or  unreasonably  ne- 
glected to  prosecute  the  work.  In  that  event,  and  in  that  event 
only,  could  they  declare  the  contract  abandoned  and  annulled,  and 
proceed  to  dispose  of  the  subject  matter,  (to  use  the  language  of  the 
instrument,)  in  the  same  manner  as  if  the  contract  had  never  existed. 
When  the  plff.  undertook  to  perform  this  work,  and  the  defts.  agreed 
to  pay  him  the  stipulated  price,  he  acquired  certain  rights  which  the 
canal  company  could  not  violate  with  impunity.     From  the  perform- 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.        175 

ance  of  this  contract  he  might  have  acquired  great  profits.  That  he 
believed  the  contract  to  be  advantageous  is  evident,  or  he  would  not 
have  entered  into  it.  Without  this  stipulation  as  to  time,  the  law 
would  have  given  him  a  reasonable  time  to  execute  his  contract;  but 
he  did  not  choose  to  rely  upon  this,  but  stipulated  for  a  given  time. 
The  time  therefore,  became  the  agreement  of  the  parties,  and  every 
agreement  under  seal  is  a  covenant,  for  the  breach  of  which  this  ac- 
tion will  lie,  and  all  other  remedies  are  extinguished.  For  where  a 
party  agrees  under  seal  to  do  or  forbear  to  do  a  thing,  the  action  of 
covenant  is  the  only  remedy  for  a  violation  of  the  agreement  where 
damages  are  unliquidated,  and  depend  in  amount  on  the  opinion  of  a 
jury,  and  all  other  remedies  are  excluded. 

With  this  understanding  of  the  contract  the  breach  sets  forth  that 
the  said  company  did,  &c.,  "  take  the  time  within  which  it  sliould 
be  incumbent  on  the  said  John  Randel,  jun.,  fully  to  perform  and 
complete  the  said  contract  to  be  less  than  four  years,"  &c.,  and  to 
this  the  defts.  not  relying  on  any  certificate  of  negligence  and  con- 
sequent abandonment  of  the  contract — admitting  the  facts — demur  in 
law,  and  present  the  question  to  the  court  whether  the  plff.  on  the 
present  state  of  the  pleadings  has  shown  a  legal  cause  of  action.  Ac- 
cording to  our  construction  of  the  contract  he  has.  We  have  seen 
that  the  canal  company  covenanted  not  to  take  the  time  within  which 
Randel  should  finish  the  work,  to  be  less  than  four  3'ears;  that  is, 
according  to  our  construction,  to  give  him  four  years  to  do  it  in;  he 
at  the  same  time  agreeing  to  use  the  necessary  diligence  for  that  pur- 
pose, and  that  the  engineer  of  the  company  might  certify  the  want 
of  such  diligence,  and  upon  his  certificate  the  company  might  avoid 
the  contract.  W^ithout  such  certificate  and  avoidance  the  company 
were  not  authorized  to  abridge  the  time,  or  take  it  to  be  less  than 
the  time  specified,  and  the  doing  so  is  a  breach  of  their  contract,  ac- 
tionable in  law. 

We  are  next  to  consider  whether  the  breach  of  this  covenant  is 
set  out  with  sufficient  certainty.  The  special  causes  of  demurrer  are 
*'  that  there  is  no  issuable  fact  presented  by  the  said  seventh  count, 
and  that  it  is  not  stated  or  set  forth  how  or  in  what  manner  or  par- 
ticular, or  by  what  act  or  matter  the  said  defts.  did  take  the  time 
within  which  it  should  be  incumbent  on  the  said  John  fully  to  per- 
form and  complete  his  said  contract  to  be  less  than  four  years,"  &c. 

The  general  rule  on  this  subject  is  that  the  breach  may  be  assigned 
in  the  words  of  the  covenant,  if  such  general  assignment  necessa- 
rily amounts  to  a  breach.  This  qualification,  which  however  i$  not 
usually  appended  to  the  rule  as  laid  down  in  the  books,  embraces  all 
those  cases  which  are  admitted  to  be  exceptions  to  the  general  rule; 
that  is,  they  are  cases  where  a  general  negation  of  the  words  of  the 
covenant  would  not  necessarily  constitute  a  breach.  1  Wheat.  Selw. 
375;  8  East  81-4.  And  there  is  another  important  rule  equally 
violated  by  the  excepted  cases,  that  more  particularity  is  required 
in  assigning  the  breach  where  the  matter  rests  peculiarly  in  the 
knowledge  of  the  party  pleading.  Thus  in  covenants  for  quiet  en- 
joyment, and  of  warranty,  the  general  assignment  is  insufficient,  for 
it  doth  not  appear  that  the  party  was  disturbed  or  evicted  by  lawful 
title;  and  it  lies  peculiarly  in  the  knowledge  of  the  party  alledging 


176        Randel,  Jun.  v8.  Ches.  &  Del.  Canal  Company. 

the  eviction  to  show  by  what  title  he  was  evicted.  So  in  covenants 
against  incumbrances. 

The  assignment  should  place  sufficient  on  tlie  record  to  show  the 
court  that,  if  true,  it  amounts  to  a  breach  of  the  covenant;  and  to 
give  the  other  party  reasonable  notice  of  the  matter  relied  on,  not  of 
the  proof  of  tliat  matter,  but  of  the  thing  to  be  proved.  The  first  is 
done  whenever  a  general  negation  or  affirmance  of  the  words  of  the 
covenants  amount  to  a  breach;  particularity  in  the  last  is  excused 
where  the  matter  lies  properly  in  the  knowledge  of  the  other  party, 
or  where  it  tends  to  great  prolixity. 

Recurring  to  the  construction  we  have  given  to  this  part  of  the 
agreement,  it  will  appear  that  the  covenant  of  the  company  in  effect 
is  to  allow  Randel  four  years  for  the  completion  of  this  canal,  with  a 
certain  qualification  not  now  necessary  to  mention.  The  breach  of 
this  covenant  is  that  the  company  did  not  allow  him  the  four  years, 
and  this  presents  an  issue  proper  for  the  consideration  of  a  jury.  At 
all  events  it  amounts,  if  true,  to  a  breach  of  the  covenant,  and  as  the 
facts  constituting  the  breach  are  entirely  within  the  knowledge  of 
the  defts.,  the  purposes  of  notice  to  them  do  not  require  a  more  par- 
ticular statement.  We  here  leave  the  words  of  the  contract  and  of 
the  breach,  and  substitute  what  we  understand  to  be  their  meaning; 
but  it  differs  not  whether  the  assignment  is  that  the  company  did 
not  allow  four  years,  or  did  take  the  time  to  be  less  than  four  years. 

(Prevention.)  That  part  of  the  contract  declared  on  in  the  eighth 
count  is  as  follows: — 

"  And  it  is  further  agreed  as  aforesaid  that  in  case  the  party  of  the 
first  part  shall,  from  the  default  of  the  party  of  the  second  part  in 
any  particular,  be  prevented  from  pursuing  the  due  and  best  mode  of 
executing  this  contract,  or  from  entering  upon  or  flooding  lands  for 
that  purpose,  the  pecuniary  damage  sustained  by  him  in  consequence 
thereof  shall  be  certified  by  the  engineer  of  the  party  of  the  sebond 
part  for  the  time  being;  and,  on  his  certificate  which  shall  be  final 
and  conclusive  between  the  parties,  the  party  of  the  second  part  shall 
make  to  the  party  of  the  first  part  such  reasonable  compensation  and 
allowance  as  by  the  said  certificate  may  be  ascertained  and  fixed." 

The  breach  assigned  on  this  clause  is,  that,  although  Randel  was 
from  the  default  of  the  company  prevented  from  pursuing  the  due  and 
best  mode  of  executing  the  said  contract,  the  pecuniary  damage  sus- 
tained by  him  in  consequence  thereof  hath  not  been  certified  by  the 
engineer  of  the  said  company  for  the  time  being:  and  the  sufficiency 
of  this  breach,  in  a  general  point  of  view,  depends  on  the  question 
whether  the  above  clause  amounts  to  a  covenant  on  the  part  of  the 
company  that  their  engineer  should  certify  this  damage  whenever 
it  should  arise,  or  whether  it  is  a  reference  by  both  parties  to  a  com- 
mon umpire.  In  looking  through  this  whole  contract  it  is  to  be  ob- 
served that  the  canal  company  have  generally  shielded  themselves 
by  confining  their  responsibilities  to  the  adjudication  of  their  own 
engineer,  who  is  frequently  made  the  sole  arbitrator  and  umpire  eo 
nomine:  and  in  this  instance  also,  they  have  limited  the  amount  of 
their  liability  to  the  certificate  of  that  officer.  But  the  question  here 
is  whether,  in  a  given  case  arising  from  their  own  default,  and  where 
Randel's  redress  was  confined  in  amount  to  the  certificate  of  their 


II 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.         IT 


officer,  they  have  not  covenanted  that  such  officer  should  do  that 
without  which  Randel  could  have  no  redress.  The  damage  to  the 
plfE.  arises  from  the  default  of  the  company.  The  amount  of  that 
damage  is  to  be  ascertained  by  their  own  officer;  appointed  by  them, 
responsible  to  them,  and  removable  at  their  pleasure.  Randel  agrees 
to  be  bound  by  this;  it  is  his  contract  and,  prudent  or  imprudent,  he 
must  abide  by  it;  but  is  it  to  be  conceived,  is  it  a  sensible  construc- 
tion of  the  contract,  that  he  relied  on  this  remedy,  thus  restricted, 
without  any  obligation  on  the  part  of  the  company  that  their  agent 
should  certify  at  all.  Unless  the  words  of  the  contract  clearly  con- 
vey this  meaning,  the  absurdity  of  the  arrangement  would  prohibit 
such  a  construction.  Those  words  certainly  do  not  require  such  a 
construction;  if  indeed  they  do  not  directly  favor  the  opposite  posi- 
tion. It  is  agreed  that  in  case  Eandel  shall  from  the  default  of  the 
company  be  prevented  from  proceeding  in  the  best  manner,  the  pe- 
cuniary damage  shall  be  certified  hy  the  engineer  of  the  company 
for  the  time  being,  &c.  The  effect  of  the  certificate  is  afterwards 
defined;  but  on  these  words — either  on  a  fair  reading  of  the  single 
sentence,  or  connected  as  it  should  be  with  the  context  in  a  reason- 
able construction  of  the  whole  contract,  it  does  amount,  in  our  view, 
to  an  agreement  on  the  part  of  the  company  that  their  engineer 
should  certify  the  damage  in  case  any  such  arose  from  their  default. 
This  construction  moreover  derives  force  from  the  clause  almost  im- 
mediately following,  wherein  a  reference  to  arbitration  is  expressly 
made  of  all  matters  of  dispute  or  difference  in  opinion  in  relation  to 
the  contract  or  arising  under  it.  The  subject  matter  of  this  clause 
was  not  suitable  for  reference;  a  dispute  in  relation  to  it  could  not 
have  been  anticipated;  it  was  agreed  by  both  parties  that  in  case  of 
damage  from  certain  specified  causes,  the  amount  thereof  should  be 
ascertained  hy  certificate;  and  as  EandeL  agreed  that  ,the  agent  of  the 
other  party  might  make  that  certificate,  and  that  he  would  be  bound 
thereby,  it  reasonably  if  not  necessarily  followed  that  the  company 
engaged  the  certificate  should  be  made. 

If  this  be  the  meaning  of  the  contract,  the  breach  thereof  is  well 
assigned  in  the  words  of  the  covenant  according  to  the  principles  be- 
fore stated,  and  which  are  fully  recognized  in  the  case  of  Gale^  vs. 
Reed.  8  East  80.  The  breach  in  that  case  is  strikingly  similar  to 
this.  The  deft,  covenanted  to  employ  exclusively  the  plff.  to  make 
cordage  for  his  friends,  and  not  to  employ  any  other  person,  nor  to 
carry  on  the  business  of  rope-maker,  &c.  The  breach  was  that  the 
deft,  did  carry  on  the  business  of  rope-maker,  &c.,  and  made  cordage 
for  divers  persons,  &c.,  and  did  not  nor  would  employ  the  plff.  to 
make  such  cordage  but  neglected  so  to  do,  and  employed  divers 
other  persons,  &c.  The  deft,  demurred,  assigning  for  cause  "  that 
plff.  had  not  shown  any  and  what  particular  person  or  persons  for 
whom  the  deft,  made  cordage ;  or  any  and  what  particular  quantities 
or  hinds  of  cordage  the  deft,  so  made  5  nor  in  what  manner  or  hy  ivJiat 
acts  he  carried  on  the  business  of  rope-maker,  &c.  Lord  Ellenbo- 
rough  said  the  answer  was  that  as  the  facts  alledged  in  the  breaches 
lie  more  particularly  in  the  knowledge  of  the  deft,  than  of  the  plff. 
there  was  no  occasion  to  state  them  more  particularly.     So  in  this 

23 


178        Handel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

case  the  causes  assigned  for  demurrer  are  that  it  is  not  stated  in  what 
particular  matters  or  things  the  alledged  default  of  the  said  defts. 
consisted,  took  place  or  existed;  or  how  or  in  what  manner  or  by 
what  act  of  the  said  defts.  the  said  John  was  prevented  from  pur- 
i^uing  the  due  and  best  mode  Of  executing  his  contract.  The  answer 
is,  that  these  facts  lie  more  properly  in  the  knowledge  of  the  defts. 
than  of  the  plff.,  and  need  not  be  stated  with  more  particularity. 

Another  ground  was  taken  in  the  argument,  though  not  assigned 
in  the  demurrer,  against  the  suflBciency  of  this  breach;  that  there  is 
no  averment  that  Kandel  had  sustained  any  damage  by  being  thus 
prevented  from  pursuing  the  due  and  best  mode  of  executing  his  con- 
tract. To  this  it  was  replied  that  the  damage  was  a  necessary  con- 
sequence upon  the  prevention,  and  was  to  be  inferred.  But  this  is 
deducing  from  the  facts  stated,  another  fact  material  to  the  breach, 
and  without  which  the  breach  is  not  perfect.  It  is  true  that  the 
failure  to  certify  and  not  the  failure  to  pay,  is  the  gist  of  the  com- 
plaint; but  how  does  it  appear  from  the  facts  here  stated  on  this  re- 
cord that  there  was  any  damage  sustained,  or  any  to  certify?  The 
covenant  is,  as  we  have  construed  it,  that  in  case  Randel  should,  from 
the  default  of  the  canal  company,  be  prevented  from  pursuing  the 
due  and  best  mode  of  executing  his  contract,  &c.,  their  engineer 
should  certify  the  pecuniary  damage  sustained  by  him  in  conse- 
quence thereof.  Now  how  does  the  allegation  that  he  was  so  pre- 
vented, and  that  the  company's  engineer  did  not  certify,  cover  the 
whole  ground  without  an  averment  that  damage  was  sustained.  The 
engineer  was  not  by  the  contract,  to  certify  damage  as  the  neces- 
sary result  of  the  prevention,  but  only  "  the  pecuniary  damage  sus- 
tained in  consequence  thereof;  "  and  thoTigh  it  may  be  true  that  the 
plff.  was  prevented  as  he  alledges  in  his  breach;  and  though  damage 
may  be  the  probable  consequence  of  such  prevention,  yet  it  should 
have  been  stated  that  such  damage  was  the  consequence  of  and  did 
arise  from  the  prevention  to  bring  the  assignment  within  that  rule 
before  alluded  to,  which  requires  that  so  much  should  be  placed  on 
record  as  that  if  true,  there  must  have  been  a  breach  of  the  cove- 
nant, and  the  plff.  must  have  a  cause  of  action.  An  important*  fact 
is  here  left  to  be  inferred,  and  the  breach  is  consequently  not  well 
assigned.  That  fact  is  essential  to  the  plff's.  cause  of  action,  and 
the  failure  to  aver  it  is  bad  on  general  demurrer.  Judgment  must 
be  rendered  against  the  demurrant  on  the  seventh  count,  and  in  his 
favor  on  the  eighth.  And  let  these  judgments  stand;  as  both  sides 
have  heretofore  been  allowed  to  amend  repeatedly;  and  they  have 
come  down  to  the  argument  and  to  judgment  on  these  demurrers 
with  their  eyes  open.  There  will  never  be  an  end  to  this  cause  if 
the  parties  are  to  demur  when  they  please,  and  amend  as  often  as 
the  demurrers  shall  be  ruled  against  them. 

The  counsel  for  the  canal  company  moved  for  leave  to  withdraw 
their  demurrers  and  to  plead  over,  which  was  refused  by  a  majority 
the  court  without  argument,     (a) 

(a")  Tidd  lays  down  the  rule  to  have  been  formerly  that  after  a  demur- 
rer the  court  would  not  jjermit  an  amendment  without  the  consent  of  the 
adverse  party.    But  he  says  that  rule  is  relaxed,  and  it  is  now  settled 


I 


I 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.         179 

(Judgment.)  The  judgment  on  the  demurrers  was  entered  in  the 
following  form: — 

"  This  cause  having  heen  set  down  for  argument  at  the  May  term 
1833,  on  the  demurrers  to  the  fourth  and  fifth  additional  counts  in 
the  plflE's.  declaration,  being  the  two  last  counts  in  the  said  declara- 

tljat  after  demurrer  and  joinder,  either  party  may  amend  of  course;  and 
even  where  the  proceedings  are  entered  on  record  and  the  demurrer  has 
been  argued,  the  court  will  give  leave  to  amend  where  the  justice  of  the 
case  requires  it,  and  there  is  any  thing  to  amend  hy.  But  this  is  alto- 
gether discretionary  in  the  court,  and  it  is  not  usual  to  amend  after  de- 
m.urrer  argued,  and  the  opinion  of  the  court  is  known.  1  Tidd's  Prac- 
tice 656 ;  Hardwich  171 ;  1  Lord  Raymond  668 ;  2  Strange  734,  954,  976 ; 
Hardwick  cases,  &c.  &c.,  vid.  infra. 

Jordan  vs.  Twells,  Cases  Temp.  Hardwick,  171,  where  the  plff.  has  lost 
a  trial  the  deft,  will  never  be  admitted  to  amend  his  plea. 

Crockett  vs.  Jones,  2  Strange  734.  After  argument  on  demurrer  the 
plff.  was  allowed  to  amend  his  replication  by  entering  continuances. 
Hales  vs.  Hales  was  cited  where  such  an  amendment  was  refused  by 
C.  B.  Sed  Per  Cur.  The  authorities  of  our  own  court  warrant  it,  and 
let  the  replication  be  amended  on  payment  of  costs. 

Bishop  vs.  Stacy,  2  Strange  734.  "  After  a  special  demurrer  and 
joinder  and  argument,  the  plfF.  had  leave  to  amend  the  bill  upon  the  file. 
And  this  was  granted  upon  debate." 

Rex  vs.  Ellames,  2  Strange,  976;  more  full  in  Cases  Temp.  Hardwick 
42.  In  formation  in  the  nature  of  a  quo  warranto  against  the  deft,  as 
mayor  of  Chester.  He  justified  under  a  charter  by  which  the  mayor  is  to 
be  chosen  by  the  citizens  of  Chester  and  suiurhs;  and  laid  his  election 
by  a  majority  of  the  citizens  of  Chester.  Demurrer  and  joinder:  and 
when  the  case  came  into  the  paper,  deft's.  counsel  moved  to  amend  by 
inserting  the^ suburbs,  and  showed  by  affidavit  that  the  prosecutor  had 
not  lost  a  trial,  &c.,  "  and  after  long  debate  and  many  cases  cited,  the 
court  gave  leave  to  amend  and  chiefly  for  reasons  peculiar  to  this  case." 

Robinson  vs.  Rayley,  1  Burrows  321.  In  this  case,  which  is  also  cited 
by  Tidd,  the  court  refused  the  leave  to  amend. 

Douglass  330  and  620  are  both  cases  of  special  demurrer  merely. 

Solomons  vs.  Lyon,  1  East  372.  Deft,  pleaded  a  sham  plea;  plff.  re- 
plied and  deft,  demurred  specially.  The  court  here  allowed  plff.  to  amend 
because  the  plea  was  a  sham  one,  and  in  Pierce  vs.  Blake,  Salk.  515,  they 
threatened  to  fine  an  attorney  for  false  pleading. 

After  argument  on  demurrer,  plff.  moved  to  amend  his  narr,  which 
was  granted,  the  merits  of  the  case  not  coming  in  question  on  the  argu- 
ment, only  the  form  of  the  pleading.  Secus,  after  argument  on  the  mer- 
its and  nothing  to  amend  by.    Barnes  9 ;  Impey  297. 

Sayer's  Rep.  117.  In  an  action  against  bail  the  court  refused  to  give 
leave  to  withdraw  a  demurrer  and  amend,  after  the  demurrer  had  been 
argued  and  the  opinion  of  the  court  known. 

Giddins  vs.  Giddins,  Sayer's  Rep.  316,  cited  in  Tidd,  and  mentioned  in 
Burrows'  Rep.  as  a  case  of  amendment  after  the  opinion  delivered;  was 
after  argument  only.  It  was  on  a  special  demurrer;  the  court  had  given 
no  opinion  and  the  rule  was  made  absolute  without  defence. 

Abercrombie  vs.  Parhhurst,  2  Bos.  &  Pul.  480.  On  general  demurrer, 
the  court  gave  their  opinion  against  the  demurrer  and  refused  leave  to 
amend. 


180        Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

tion,  on  the  day  assigned  for  argument  thereof,  to  wit:  on  the  Satur- 
day of  the  first  week  of  the  said  term  here  comes  as  well  the  said 
John  as  the  said  The  Chesapeake  and  Delaware  Canal  Company,  by 
their  attorneys  aforesaid,  and  on  motion  of  the  attorney  of  the  said 
company  desiring  further  time,  a  day  further  is  given  to  the  par- 
ties aforesaid  here  until  the  Saturday  next  after  the  said  day  so  as- 
signed for  argument  as  aforesaid,  and  during  the  said  term ;  on  whidi 
day  here  comes  as  well  the  said  John  as  the  said  The  Chesapeake 
and  Delaware  Canal  Company  by  their  attorneys  aforesaid,  and  here- 
upon the  premises  being  seen  and  by  the  judges  here  fully  under- 
stood, and  the  said  demurrers  being  fully  argued  on  bith  sides  by 
the  said  attorneys  on  the  said  day,  and  also  on  Monday,  Tuesday 
and  Wednesday  of  the  succeeding  week;  and  because  the  said  judges 
here  will  advise  themselves  further  of  and  upon  the  premises 
before  they  give  judgment  thereon,  a  day  is  further  given  to  the 
parties  aforesaid  here  until  the  ninth  day  of  June  next  after  to  hear 
their  judgment  thereon,  because  the  same  judges  here,  thereof,  not 
yet,  &c.,  to  which  said  last  mentioned  day  the  said  court  is  for  this 
purpose  adjourned:  on  which  day  here  comes  again  as  well  the  said 
John  as  the  said  The  Chesapeake  and  Delaware  Canal  Company  by 
their  attorneys  aforesaid,  to  hear  the  said  judgment:  and  hereupon 
the  said  premises  being  again  seen  and  considered,  and  it  appearing 

Hosier,  &c.  Ex'rs.  vs.  Lord  Arundel,  3  Bos.  &  Pul.  11,  12.  Special 
demurrer.  The  court  expressed  their  opinion  in  favor  of  the  demurrer. 
Shepherd  then  applied  for  leave  to  amend,  "  But  the  court  said,  this  was 
not  a  case  in  which  they  ought  to  depart  from  a  general  rule  that  after 
argument  amendments  are  not  allowed,"  &c. 

Hamilton  vs.  Wilson  et  al,  1  East  391.  General  demurrer.  The  court 
expressed  their  opinion  against  the  demurrer.  "  Holroyd  then  asked 
leave  to  amend,  which  (it  being  after  argtiment  on  the  demurrer,)  was 
denied.    And  judgment  for  the  deft." 

Cooke  vs.  Birt,  6  Taunt.  765;  1  Marsh.  333.  After  demurrer  argued 
the  court  would  not  permit  the  plff.,  in  an  action  against  the  sheriff,  to 
amend.  And  where  a  plea  was  held  bad  on  argument  on  a  special  demur- 
rer, the  court  of  Common  Pleas  refused  amendment  although  it  was 
stated  that  the  matter  of  the  plea  was  a  bona  fide  statement.  7  Moore 
244;  1  Haiinson's  Digest  50. 

Fisher  vs.  Cowgill  Ex'r.  of  Allsion.  Debt  on  testamentary  bond  sug- 
gesting breaches.  Deft,  demurred  to  the  narr.  After  joinder  but  before 
argument  Clayton  asked  leave  to  amend  his  narr,  which  the  Supreme 
Court  {Johns,  C.  J.)  refused.    Kent,  October  term,  1830. 

Easton  use  Russell  vs.  Jones,  post  page  Supreme  Court,  Newcastle, 
March  term,  1831.  After  demurrer  argued,  and  the  court  (by  Harring- 
ton Chief  Justice,)  had  pronounced  their  opinion,  the  deft's  counsel 
moved  for  leave  to  plead  over,  whicli  was  refused.  The  demurrers  in 
this  case  were  general  and  special. 

Cuhhage  vs.  York.  Common  Pleas,  Kent,  November  term,  1829.  The 
deft,  demurred  specially  to  the  plff's.  declaration;  and,  after  argument, 
the  court  granted  the  plff.  leave  to  amend  because  the  defect  was  matter 
of  form  only,  and  judgment  had  not  been  pronounced.  They  said  expressly 
that  it  was  because  the  declaration  was  ill  only  on  special  demurrer. 

See  the  case  of  State  use  of  Godwin  vs.  Collins,  post. 


Kandel,  J  UN.  vs.  Ches.  &  Del.  Canal  Company.         181 

to  the  said  judges  that  the  demurrer  of  the  said  company  to  the  said 
fourth  additional  count,  being  the  seventh  count  in  the  amended  dec- 
laration aforesaid  contained,  which  confesses  the  matters  in  the  said 
count  mentioned,  to  wit,  the  said  contract  or  articles  of  agreement  so 
set  out  on  oyer  as  aforesaid,  and  the  fact  that  the  said  The  Chesa- 
peake and  Delaware  Canal  Company  did  on  the  first  day  of  October, 
A.  D.  1835,  to  wit,  at  Newcastle  county  afsd.  and  on  the  oth  day 
of  June,  A.  D.  1824,  and  on  divers  other  days  and  times  between 
the  day  of  the  date  of  the  said  articles  of  agreement  and  the  day  of 
bringing  this  suit,  to  wit,  at  Newcastle  county  aforesaid,  take  the 
time  within  which  it  should  be  incumbent  on  the  said  John  Eandel, 
jun.,  fully  to  perform  and  complete  the  said  contract  to  be  less  than 
four  years  from  and  after  the  first  day  of  May  next  ensuing  the  date 
of  the  said  articles  of  agreement,  as  the  plff.  in  the  said  last  men- 
tioned count  hath  declared;  it  seems  to  the  said  judges  that  the  said 
fourth  additional  count  of  the  said  declaration  as  amended,  being  the 
seventh  count  of  the  said  declaration  and  the  matters  therein  con- 
tained are  sufficient  in  law,  for  the  said  John  to  have  and  maintain  his 
aforesaid  action  thereof,  against  them  the  said  defts.,  as  the  said 
John  hath  above  thereof  alledged;  wherefore  the  said  John  ought 
to  recover,  and  the  court  doth  hereb}^  order  and  adjudge  that  he  do 
recover  his  damages  by  reason  of  the  premises  and  of  the  non-per- 
formance of  the  said  breach  in  the  said  fourth  additional  count  men- 
tioned against  the  said  The  Chesapeake  and  Delaware  Canal  Company, 
together  with  such  costs  as  the  law  by  reason  of  the  premises  will 
allow:  but  because  it  is  unknown  what  damages  the  said  John  hath 
sustained  on  that  occasion  the  judges  who  give  this  interlocutory 
judgment  do,  at  the  motion  of  the  plff^s.  attorney  in  this  action, 
make  an  order  in  the  nature  of  a  writ  of  inquiry  to  charge  the  jury 
attending  at  the  next  court  after  the  said  judgment  is  given  to  inquire 
of  the  damages  and  costs  sustained  by  the  plff.  in  this  action  by  rea- 
son of  the  premises;  which  inquiry  shall  be  made  and  evidence  given 
in  open  court  and  after  the  inquest  have  considered  thereof  they  shall 
forthwith  return  their  inquisition  under  their  hands  and  seals  to  the 
end  that  the  court  may  proceed  to  judgment  as  upon  inquisition  of 
that  kind  returned  by  the  sheriffs,  agreeably  to  the  act  of  the  general 
assembly  in  such  case  made  and  provided. 

And  because  the  said  plff.  in  the  said  fifth  additional  count  in  the 
?aid  declaration,  being  the  eighth  count  in  the  said  declaration  con- 
tained, hath  not  set  forth  or  shown  any  sum  or  amount  of  pecuniary 
damage  by  him  sustained  by  reason  of  the  premises  in  the  said  count 
mentioned,  it  seems  to  the  court  here  that  the  said  last  count  of  the 
said  declaration  and  the  matters  therein  contained  are  not  sufficient 
in  law  for  the  said  John  to  have  or  maintain  his  afsd.  action  thereof 
against  them  the  said  defts.,  and  that  they  the  said  defts.  are  net 
bound  in  law  to  answer  the  same ;  wherefore  by  reason  of  the  insuffi- 
ciency of  the  said  eighth  count  of  the  said  declaration  the  demurrer 
of  the  said  defendants  to  the  said  count  is  allowed  by  the  court  here 
and  of  the  said  last  count  the  said  defendants  have  judgment." 

Clayton,  Ingersoll,  Rogers  and  Read,  for  plaintiff. 

Frame  and  Jones,  for  defendants. 


COURT  OF  ERRORS  AND  APPEALS. 

JUNE  TERM, 
1833. 


PETER  BAUDUY  vs.  THOMAS  BRADUN,  use  of  the  BANK  OF 
WILMINGTON  AND  BRANDYWINE. 

Judgments  by  confession  are  not  within  the  8th  and  9th  statutes  William  re- 
quiring a  suggestion  of  breaches. 

Execution  may  issue  on  such  a  judgment  entered  on  a  bond  with  a  collateral 
condition. 

Two  returns  of  nihil  on  two  consecutive  aci.  fa's,  are  equal  to  scire  feci;  and  it 
is  not  a  fatal  error  if  the  last  do  not  refer  to  the  first. 

After  the  second  return  the  plflf.  has  a  day  in  court  to  sign  judgment  and  he 
may  do  it  within  the  year  and  day. 

Writ  of  error  to  the  Supreme  Court  in  and  for  Newcastle  county. 

Extracts  from  the  record : 

Thomas  Bradun  vs.  Peter  Bauduy, 
Judgment  D.  S.  B.  confessed,  April  3d,  1815,  as  of  April  term, 

1815.     Penalty  or  sum  in  narr.  $40,000:  Real  debt  $ , 

interest  from . 

On  this  judgment  a  sci  fa.  issued  against  Peter  Bauduy  on  the 
27th  October  1827,  returnable  to  the  October  term,  1827,  on  which 
the  sheriff  returned  "  non  est  inventus.'^  Another  sci.  fa.  issued  on 
the  11th  March,  1828,  returnable  to  the  March  term,  1828,  against 
Peter  Bauduy  and  terre-tenants;  on  which  the  sheriff  returned  "  non 
est  inventus  "  as  to  Peter  Bauduy,  made  known  to  John  Peter  Garesche 
and  others  the  terre-tenants.  This  sci.  fa.  did  not  recite  the  former 
one,  nor  refer  to  it. 

November  11th  1828,  on  motion,  judgment.  Real  debt  $6,996  91. 

Fi.  fa.  No.  93,  to  Nov.  term,  1829.  Levied  —  Rule  —  Inquiry,  &c. 

Vend.  Exponas  No.  20  to  Nov.  term  1830.  Sale  made,  &c. 

Assignment  of  errors: 

First.  For  that  the  said  judgment  upon  the  said  writ  of  scire  facias 
is  erroneous  in  this,  to  wit,  that  it  was  rendered  by  default  upon  one 
return  of  nihil  against  the  said  plff.  in  error.  Second.  For  that  the 
said  judgment  upon  the  said  sci  fa.  appears  to  have  been  rendered  by 
default  at  a  different  term  from  that  at  which  the  said  scire  facias  was 
made  returnable,  and  without  any  continuance  of  the  said  sci.  fa. 
Third.  For  that  final  judgment  was  rendered  against  the  said  plff.  in 
error  instead  of  an  interlocutory  judgment  on  the  writ  of  sci.  fa. 
Fourth.  For  that  the  fi.  fa.  Is  erroneous  being  issued  against  the 
said  plff.  in  error  without  the  amount  due  the  defendant  in  error  be- 


Bauduy  vs.  Bijadux,  use  Bank  Wil.  &  Bran.  183 

mg  ascertained  by  a  writ  of  inquir}'.  Fifth.  For  that  the  execution 
process  issued  against  the  plff.  in  error  is  erroneous  and  void  in  this, 
lo  wit,  that  it  issued  upon  an  interlocutory  judgment.  Sixth.  That 
judgment  was  rendered  by  default  against  the  deft,  on  a  return  of 
nihil  upon  a  sci.  fa.  which  was  not  an  alias  and  has  no  reference  to  the 
sci.  fa.  upon  which  non  est  was  returned,  and  is  also  awarded  against 
other  persons  as  well  as  the  deft. 

J.  A.  Bayard,  for  plaintiff  in  error. 

At  the  return  term  of  the  second  sci.  fa.,  there  being  no  appearance 
and  no  judgment  taken  then,  the  cause  was  out  of  court,  and  judg- 
ment could  not  be  taken  the  next  term.  There  could  be  no  continu- 
ance. The  party  taking  judgment  by  default  must  be  technically  cor- 
rect. He  should  have  either  taken  judgment  at  the  March  term  1828, 
or  have  taken  out  a  third  sci.  fa.  returnable  to  the  November  term. 
If  there  be  no  appearance  there  can  be  no  continuance.  Second. 
Where  a  party  chooses  to  substitute  two  nihils  for  a  service  the  sci.  fa's, 
must  be  connected,  an  original  and  an  alias,  the  second  referring  to  the 
first.  Here  is  no  such  reference.  Moreover  the  first  sci.  fa.  is  against 
Peter  Bauduy  alone,  the  second  is  against  Peter  Bauduy  and  terre- 
tenants.  The  first  therefore  will  not  support  the  second.  An  alias 
must  be  sued  out  commanding  the  shcfriff  to  summon  the  deft,  as  he 
has  heretofore  been  commanded.  Two  nihils  are  equal  to  a  scire  feci. 
2  Wms.  Saund.  72,  s.;  Yelv.  88;  2  Tidd  1038,  See  Tidd's  forms. 
There  being  no  connection  between  these  writs  of  sci.  fa.  they  do  not 
warrant  the  judgment.  Third.  After  taking  judgment  on  the  second 
sci.  fa.  the  party  showed  upon  the  record  that  this  was  not  a  money 
bond,  but  a  bond  with  a  collateral  condition;  and  he  undertook  to 
ascertain  the  amount  on  the  sci.  fa.  without  a  writ  of  inquiry.  We 
hold  that  this  is  totally  irregular,  even  if  the  judgment  was  right,  as 
the  amount  could  not  be  ascertained  by  the  party  himself,  but  only 
by  a  jury  on  a  writ  of  inquiry. 

Wales,  for  the  Bank. 

The  mistake  on  the  other  side  arises  from  taking  an  erroneous  view 
of  this  judgment.  What  was  the  nature  of  the  original  judgment? 
Is  it  a  final  judgment  in  debt  ?  or  a  judgment  sounding  only  in  dam- 
ages, of  an  unascertained  amount  on  which  a  writ  of  inquiry  is  neces- 
sary ?  Undoubtedly  it  is  a  final  judgment ;  for  a  sum  certain ;  a  judg- 
ment in  debt.  The  judgment  on  the  sci.  fa.  follows  its  nature  —  it  is 
merely  that  execution  issue,  &c. 

Judgment  confessed  on  a  warrant  of  attorney  is  a  final  judgment; 
1  Sellons  Pr.  381.  not  within  the  statute  8  <§  9  Wm.  requiring  a  sug- 
gestion of  breaches.  1  Tidd  508,  511.  Excepted  out  of  our  own  stat- 
ute. (Dig.  78,  sec.  2>.)  On  a  judgment  confessed  on  bond  with  col- 
lateral condition  an  execution  may  issue.  3  Taunt  94.  It  does  not 
appear  by  the  i^cord  that  this  judgment  was  on  a  bond  with  a  col- 
lateral condition;  and  where  the  objections  are  strictly  technical  the 
court  will  not  make  such  an  inference.  Irregularity  in  the  process 
cannot  be  taken  advantage  of  on  writ  of  error.  There  was  full  remedy 
below  by  a  motion  to  the  court.  8  Johns.  Rep.  61.  No  case  can  be 
found  whereon  a  judgment  by  confession  the  defendant  could  insist 
on  a  writ  of  inquiry.    There  are  cases,  as  these  in  2nd  Saund.  187, 


184  Bauuuy  vs.  Bkadux,  use  Bank  Wil.  &  Bran. 

where  the  plff.  may,  at  his  option,  sue  out  execution  on  a  writ  of  in- 
quiry where  he  goes  for  interest  by  way  of  damages  de  increment©; 
but  there  is  no  case  establishing  that  the  deft,  can  compel  him  to  take 
the  writ  of  inquiry.  He  is  entitled  to  execution  if  he  choose  it.  7 
Durnford  &  East  446.^ 

Second.  The  next  question  is  whether  the  judgment  on  the  sci.  fa.  is 
regular.  The  rule  of  the  English  courts  is  correctly  stated  that  two 
nihils  are  equal  to  a  scire  feci.  2  Saund.  72,  s.  Yet  this  rule  is  not 
uniform ;  in  the  common  pleas  one  nihil  is  sufficient ;  and  the  practice 
in  both  courts  is  not  to  take  out  either  of  the  writs  but  merely  to  make 
formal  entries  of  the  returns  of  nihil.  2  Sellon  196.  Does  the  fact 
that  the  second  writ  included  the  terre-tenants  with  the  deft,  make  any 
difference?  As  relates  to  Bauduy  there  are  two  returns  of  nihil,  and 
he  can  set  up  no  objection  to  the  proceedings  against  the  terre-tenants. 
But  it  is  contended  that  this  second  writ  is  not  an  alias.  The 
books  speak  indifferently  of  an  alias  sci.  fa.  and  of  a  second  sci. 
fa.  The  word  alias  simply  means  another;  the  insertion  of  it  is  not 
absolutely  necessary,  and  if  omitted  it  was  amendable  at  common  law; 
(1  Bac.  Ahr.  146)  by  the  statute  of  jeo-fails,  (Id.  153)  and  un- 
doubtedly by  our  own  act  of  assembly  (8  vol.  43.)  it  is  sufficient  if  the 
records  of  the  court  show  that  there  are  two  consecutive  sci.  fa's,  to 
following  terms,  whether  they  be  entitled  alias  or  not.  If  there  be  an 
omission  it  is  clearly  a  misprision  of  the  clerk  and  amendable  by  the 
statute  jeo-fails :  32  Hen.  8 :  which  will  also  cover  the  objection  that 
judgment  was  not  taken  at  the  return  term  of  the  sci.  fa.  The  plff.  is 
in  court,  and  has  a  day  to  sign  judgment  and  he  may  do  it  within  the 
year  and  day. 

J.  M.  Clayton,  on  the  same  side. 

If  this  judgment  is  now  to  be  reversed  at  the  instance  of  the  deft,  he 
will  take  advantage  of  his  own  wrong.  He  might  have  moved  the 
court  below  to  set  it  aside  j  but  he  has  chosen  to  lay  by,  let  execution 
go,  the  land  be  sold,  money  distributed  and  rights  vested.  The  court 
will  not  now  regard  mere  technical  objections  with  favor.  Even  the 
want  of  a  writ  of  inquiry  is  aided  by  statute  jeo-fails.  2  Strange  878 ; 
1  Tidd.  525.  Xothing  is  clearer  than  that  the  want  of  a  continuance 
is  aided  by  our  act  of  assembly.  8  vol.  43.  It  has  never  been  known  in 
the  practice  of  this  state  for  a  writ  of  inquiry  to  issue  on  a  judgment 
confessed  on  a  warrant  of  attorney.  The  nature  of  the  action  is  debt. 
The  judgment  is  in  debt;  and  the  sci.  fa.  is  merely  a  continuance  of 
the  same  action.  In  the  case  of  Green  and  Millechop  in  this  state  the 
question  arose  whether  execution  could  issue  on  a  judgment  upon  a 
by^nd  with  a  collateral  condition.  The  court  refused  to  set  aside  the 
execution.  It  was  not  contended  in  that  case  that  a  writ  of  inquiry 
was  necessary;  but  that  a  sci.  fa.  should  have  issued  suggesting 
breaches.  The  statute  Wm.  does  not  extend  to  a  judgment  on  confes- 
sion. The  English  books  say  "  it  seems; ''  but  here  there  is  no  doubt, 
for  it  is  so  settled  by  our  act  of  assembly.  Dig.  78.  Then  why  should 
we  assign  breaches?  The  sci.  fa.  cannot  assign  breaches  without  de- 
parting from  the  original  judgment;  it  is  merely  a  continuation  of 
that  judgment,  and  must  follow  it.  But  this  point  has  not  been  urged 
here,  though  relied  on  in  the  case  referred  to.  As  to  the  continuances ; 
they  are  cured  in  our  act  of  assembly.    After  default  the  continuance 


I 


Bauduy  vs.  Bradun,  use  Bank  Wil.  &  BRAisr, 

is  only  by  dies  datus  to  the  plff.  for  the  deft,  is  not  in  court.  The  plff. 
may  take  judgment  at  any  time  within  the  year  and  day.  5  Com.  Dig. 
Pleader  v.  1.  2.  The  court  may  amend  a  sci.  fa.  when  before  them; 
being  a  judicial  writ  it  is  amendable.  8  Del.  L.  43.  6  Bac.  120.  We 
have  a  judgment  on  two  nihils  against  Bauduy,  and  a  judgment 
against  the  terre-tenants.  We  shall  not  now  consider  the  effect  of  the 
latter  judgment;  though,  if  it  were  necessary,  we  should  contend  that 
it  would  warrant  the  subsequent  proceedings;  but  there  is  no  error  in 
relation  to  the  judgment  against  Bauduy,  and  we  need  not  examine 
the  effect  of  the  other. 

Frame,  in  reply,  for  plaintiff  in  error. 

First.  Is  the  entry  of  a  judgment  at  a  different  term  from  that  to 
which  the  sci.  fa.  was  returnable  regular  ?  We  don't  say  that  there  has 
been  a  discontinuance;  strictly  speaking  that  could  not  be  where  the 
deft,  is  not  in  court.  But  the  question  is  whether  the  process  is  fol- 
lowed up ;  whether  the  judgment  is  07i  the  process.  The  sci.  fa.  is  re- 
turnable to  March  term.  Now  we  don't  complain  that  the  case  was  not 
continued  until  the  November  term,  but  that  no  judgment  was  taken 
at  the  March  term.  After  that  the  plff.  was  not  entitled  to  a  judg- 
ment, for  even  he  was  not  in  court.  What  kept  him  in  court  until  an- 
other term  ?  There  could  be  no  continuance  for  want  of  parties.  His 
process  entitled  him  to  judgment  at  March  term  but  not  after.  Then 
how  can  this  judgment  be  cured  by  the  statute  of  jeo-fails,  or  our  act 
of  assembly  ?  This  is  not  mere  form  —  but  substance.  It  goes  to  the 
existence  of  the  judgment.  The  objection  is  that  the  judgment  was 
rendered  on  a  state  of  proceedings  not  authorizing  any  judgment ;  it  is 
a  judgment  without  any  party  in  court  either  plff.  or  deft.;  without 
any  cause  or  proceedings  on  which  a  judgment  could  be  rendered. 
There  is  nothing  to  amend  such  a  judgment  by.  It  seems  by  the  au- 
thorities cited  that  there  is  a  difference  in  the  practice  on  this  subject 
in  the  King's  Bench  and  Common  Pleas.  The  practice  of  the  King's 
Bench  has  been  more  generally  adopted  in  this  state ;  and,  in  reference 
to  this  question,  the  practice  of  that  court  is  reasonable.  If  then  two 
sci.  f a.'s  be  necessary,  they  must  be  connected ;  they  must  relate  to  each 
other,  the  second  following  up  the  first :  and  they  must  surely  be  each 
against  the  same  defendant.  Here  the  second  sci.  fa.  not  only  does 
not  allude  to  the  first ;  but  is  against  other  persons  as  well  as  the  deft 
in  the  first.  We  have  not  contended  that  a  bond  conditioned  for  the 
payment  of  money  with  a  warrant  of  attorney  to  confess  judgment 
falls  within  the  statute  of  Wm.  requiring  a  suggestion  of  breaches. 
The  cases  in  8  Johnson  and  in  Taunton  are  cases  of  bonds  conditioned 
for  the  payment  of  a  sum  certain.  But  the  position  taken  on  the  other 
side  is  general,  that  in  no  case  of  a  warrant  of  attorney  can  the  judg- 
ment fall  within  the  statute  Wm.  or  our  own  act  of  assembly;  going 
even  to  the  case  where  the  condition  is  to  perform  a  collateral  act ;  to 
indemnify  or  to  pay  uncertain  damages.  Surely  such  a  case  must  be 
within  the  statute. 

Mr.  Wales  now  cited  2  Bos.  £  Pitl.  44.5-6.  that  final  judgment  may 
be  signed  on  a  bail  bond  without  a  writ  of  inquiry ;  to  which, 

Mr.  Bayard  replied,  that  the  judgment  on  a  bail  bond  was  for  a 
sum  certain. 

24 


186         Farmeks'  Bank  et  al.  vs.  Sabah  H.  Massey. 

The  Court  entered  the  following  decree: 

"  And  now,  to  wit,  this  eighth  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-three,  this  cause  coming  on  to 
be  heard  in  the  presence  of  counsel  on  both  sides,  learned  in  the  law ; 
and  the  record  and  proceedings  of  the  court  below,  and  the  errors  as- 
signed, having  been  seen  and  considered.  It  is  ordered,  adjudged  and 
decreed  by  the  court  here  that  the  judgment  of  the  late  Supreme  Court 
be  in  all  things  affirmed ;  and  that  the  plaintiff  in  Error  pay  the  costs 
of  this  appeal,  and  that  the  record  be  remanded  to  the  court  below." 


THE  FARMEKS'  BANK  et  al.  respondents  below,  appellants  vs.  SA- 
RAH H.  MASSEY,  complainant  below. 

The  lien  of  a  levy  under  a  fl.  fa.  is  limited  to  the  property  ascertained  by  the 

inventory  and  appraisement. 
A  leasehold  interest  in  a  house  and  lot  is  not  bound  by  a  return  of  "  levied  ,on 

goods  and  on  lands  as  per  inquisition  annexed;  "  no  inventory  being  made 

specifying  the  leasehold. 
Quere?  If  the  Sheriff  neglect  to  return  an  inventory  and  appraisement,  can  the 

plaintiff  have  further  execution  process  against  the  defendanif 

Appeal  from  the  Court  of  Chancery  for  Newcastle  county. 

All  the  judges  sat  except  Mr.  Black;  this  appeal  being  from  a  de- 
cree of  the  late  Chancellor.    (Johns.) 

From  the  bill,  answer,  exhibits  and  proofs  in  the  cause  it  appeared, 
that  George  Reynolds  Massey,  the  husband  of  the  complainant,  was 
in  his  lifetime  possessed  under  a  lease  for  the  term  of  999  years  of  a 
two-story  brick  house,  stable  and  outhouses  and  seven  acres  of  land 
situate  in  Newcastle  county ;  that  being  possessed  of  the  said  premises 
as  afsd.  he  died  intestate  in  the  year  1816;  that  letters  of  administra- 
tion were  granted  on  his  estate  to  N.  G.  Williamson  and  Victor  Du- 
pont ;  that  the  personal  estate  being  insufficient  to  pay  the  debts  of  the 
intestate,  the  administrators  at  an  Orphans'  Court  held  at  Newcastle, 
April  12th,  1817,  preferred  their  petition  and  obtained  an  order  of  the 
said  court  for  the  sale  of  the  land  and  real  estate  of  the  intestate ;  that 
at  the  time  of  the  said  order  and  prior  thereto,  to  wit,  on  the  11th  of 
July,  1815,  a  judgment  vas  entered  in  the  court  of  Common  Pleas  for 
Newcastle  county  as  of  the  May  term  in  the  year  afsd.  at  the  suit  of 
the  President,  Directors  and  Company  of  the  Farmers'  Bank  of  the 
State  of  Delaware  against  the  said  George  R.  Massey,  the  real  debt 
being  $2,528,  with  interest  from  the  4th  November  in  the  same  year ; 
that  a  writ  of  fi.  fa.  was  issued  thereon  April  22d  1816,  returnable  to 
the  May  term  of  that  year;  that  by  virtue  of  the  said  writ  the  sheriff 
levied  on  the  goods  of  the  intestate  then  in  the  hands  of  the  adminis- 
trators, which  by  an  inventory  and  appraisement  returned  by  the  ad- 
ministrators into  the  register's  office  for  the  said  county,  amounted  to 
the  sum  of  $1,300 ;  that  the  said  fi.  fa.  was  in  the  hands  of  the  sheriff 
at  the  time  the  said  order  of  the  Orphans'  Court  as  afsd.  was  obtained ; 
that  the  said  administrators  having  obtained  the  order  of  the  Orphans' 
Court  as  afsd.  proceeded  to  advertise  and  publicly  sold  the  afsd.  two- 


Farmers'  Bank  et  al.  vs.  Sarah  H.  Massey.  187 

story  brick  house,  stable,  outhouses  and  seven  acres  of  land  on  the 


I 


day  of in  the  year  1817 ;  that  the  said  Sarah  H.  Massey  was  the 

purchaser,  and  the  consideration  money,  being  the  amount  of  her  bid, 
viz.  $1,175,  was  paid  by  her  to  the  said  administrators;  that  the  return 
of  the  said  sale  was  made,  read,  approved  and  confirmed  by  the  said 
Orphans'  Court  in  the  month  of  April  1818,  and  in  August  of  the 
same  year  a  deed  was  executed  in  the  usual  form  by  the  administrators, 
conveying  the  afsd.  two-story  brick  house,  stable,  outhouses  and  seven 
acres  of  land  with  their  appurtenances  to  the  said  Sarah  H.  Massey, 
lier  heirs  and  assigns ;  that  Nicholas  Cr.  Williamson,  one  of  the  admin- 
istrators, made  a  payment  to  Francis  Haughey,  sheriff,  amounting  to 
the  sum  of  $975.  By  the  sheriff's  return  of  the  fi.  fa.  No.  81,  to  May 
term  1816  issued  at  the  suit  of  the  bank  as  afsd.  which  is  in  the  fol- 
lowing words :  "  levied  on  goods  in  the  hands  of  the  administrators 

amounting  to  $ ,  and  on  land  as  per  inquisition  annexed,  subject " 

—  it  does  not  appear  that  any  inventory  or  appraisement  was  made 
and  returned  by  the  sheriff,  nor  was  any  sale  made  by  him  prior  to  the 
return  of  the  said  writ.  It  further  appeared  that  in  the  year  1818  the 
Farmers'  Bank  afsd.  caused  to  be  issued  a  writ  of  venditioni  exponas 
No.  99,  to  December  term,  1818,  under  which  the  sheriff  returned 
"  sale  made  12th  deer.  1818,  of  Nos.  1  and  2,  to  James  R.  Black,  at 
the  price  of  $5,580;  the  sale  of  No.  3  (the  house  and  lot  afsd.) 
"  countermanded  by  plff.'s  att'y."    No  further  proceedings  were  taken 

by  the  Farmers'  Bank  afsd.  until  the day  of ,  1819,  when  the 

said  bank  caused  to  be  issued  an  alias  venditioni  exponas  No.  51,  to 
December  term  1819,  for  the  sale  of  No.  3,  which  was  stopped  and  the 
proceedings  thereon  restrained  by  the  writ  of  injunction  awarded  on 
behalf  of  Sarah  H.  Massey  the  complainant  below,  which  injunction 
was  made  perpetual  by  the  decree  of  the  chancellor  at  the  hearing  of 
the  cause  in  the  court  below. 

From  this  decree  an  appeal  was  taken  and  the  appellants  assigned 
the  following  causes  of  appeal:  First.  For  that  the  said  decree  is  er- 
roneous in  this,  to  wit,  that  the  chancellor  decreed  a  perpetual  injunc- 
tion restraining  the  defts.  from  proceeding  at  law  upon  the  judgment 
and  execution  against  George  E.  Massey  mentioned  in  the  bill  of  com- 
plaint, whereas  the  chancellor  ought  to  have  decreed  that  the  bill  of 
the  said  Sarah  II.  Massey  the  complainant  below  should  be  dismissed. 
Second.  For  that  the  said  decree  is  erroneous  in  this,  to  wit,  that  the 
said  decree  is  against  the  evidence  and  facts  in  the  cause.  Third.  For 
that  the  said  decree  is  erroneous  in  this,  to  wit,  that  the  said  decree 
is  against  the  law  and  equity  of  the  case. 

Booth,  for  appellants. 

The  complainant  applied  for  the  aid  of  chancery  on  the  ground  of 
an  agreement  between  Williamson  the  administrator  of  Massey  and 
sheriff  Haughey  with  the  assent  of  the  directors  and  attorney  of  the 
bank,  that  Williamson  should  sell  the  property  of  Massey  instead  of 
the  sheriff,  and  that  the  amount  of  complainant's  purchase  was  actu- 
ally paid  to  the  sheriff,  and  by  him  applied  to  the  bank's  execution. 
The  ground  then  is  fraud  or  something  very  like  it.  The  answer  of 
the  bank  denies  the  agreement  totally.  All  the  parties  considered  that 
this  house  and  lot,  which  turned  out  to  be  but  a  leasehold,  was  a  free- 
hold and  a  fee  simple.    Upon  this  idea  the  application  to  the  Orphans' 


188         Farmebs'  Bank  et  al.  vs.  Sabah  H.  Masset. 

court  for  power  to  sell  it  was  predicated,  for  if  it  was  only  a  leasehold, 
the  administrators  had  power  to  sell  it  without  applying  to  the  court. 
Any  agreement  or  understanding  between  the  sheriff  and  the  admin- 
istrators must  therefore  have  had  reference  merely  to  the  personal 
property,  not  including  this  house  and  lot  which  was  considered  and 
treated  as  realty.  The  execution  of  the  bank  was  issued  two  days  after 
Massey's  death,  and  levied  on  all  his  personal  and  real  property  in- 
cluding this  house  and  lot,  which  was  bound  by  that  levy  whether  it  be 
considered  freehold  or  leasehold.  Being  so  bound  the  sale  by  the  ad- 
ministrators could  not  discharge  it  and  the  bank  has  still  a  right  to 
follow  out  its  process  to  a  sale,  unless  indeed  it  could  be  tainted  with 
the  supposed  fraud  of  which  there  is  no  evidence. 

Wales,  for  the  respondent; 

Mrs.  Massey  stands  in  the  condition  of  a  purchaser  of  a  chattel  from 
a  person  being  in  possession  and  having  power  to  sell  it.  This  prop- 
erty was  not  at  that  time  levied  on  as  personal  property  by  this  fi.  fa. 
of  the  bank.  What  then  was  to  prevent  her  purchasing  it  ?  She  did 
purchase  and  pay  for  it  and  received  the  best  evidence  of  her  purchase, 
a  deed.  But  supposing  it  had  been  levied  on  as  personal  property  it 
was  left  in  the  hands  as  the  administrators  and  they  being  in  possession 
had  a  right  to  make  sale  of  it,  at  least  the  title  would  pass  by  such  a 
sale.  The  principle  is  that  a  levy  does  not  divest  the  property  if  it  be 
left  in  the  hands  of  the  party.  At  the  time  of  the  purchase  by  Mrs. 
Massey  the  sheriff  had  made  no  return  of  his  levy  and  she  could  have 
no  notice  of  a  lien  arising  from  such  levy.  She  is  therefore  an  inno- 
cent purchaser  without  notice.  The  return  of  the  sheriff  is  levied  on 
property  in  the  hands  of  the  administrators.  After  such  a  return  the 
bank  could  not  proceed  further  until  they  showed  that  this  levy  was 
not  a  satisfaction  of  the  debt.  It  is  a  levy  to  an  uncertain  amount, 
and  there  is  no  inventory  or  appraisement.  Before  they  could  proceed 
against  the  land  they  must  show  a  disposition  of  the  goods  levied  on. 
A  levy  to  an  uncertain  amount  is  a  satisfaction  of  the  executioji  until 
the  amount  appear  to  be  insufficient.  Then  even  considering  this  as 
real  property,  there  is  an  end  to  the  bank's  claim,  until  the  property 
levied  on  shall  have  been  disposed  of.  Plff.  cannot  take  out  a  second 
execution  until  the  first  fails  to  be  satisfied;  and  this  although  the 
sheriff  has  not  sold  the  goods  nor  returned  the  writ.  2  Wils.  Bac.  Ah. 
717,  720.  Execution,  D.  If  goods  be  levied  on  and  not  taken  out  of 
the  party's  hands  they  may  be  legally  sold  and  the  purchaser  without 
notice  is  protected.  9  Johns.  Rep.  131.  A  levy  without  a  seizure  does 
not  divest  the  property.  4  East  523.  But  here  the  fi.  fa.  was  not  re- 
turned to  the  proper  term  nor  for  two  years  after.  The  bank  lay  by 
and  did  not  procure  a  return.  This  is  evidence  of  their  acquiescence 
in  the  arrangement  between  the  administrators  and  the  sheriff.  The 
next  step  which  they  did  take  in  execution  of  their  judgment  was  di- 
rected against  Nos.  1  and  2,  other  property  of  Massey  leaving  this 
leasehold  untouched.  Then  as  to  the  levy.  A  levy  on  freehold  will 
not  bind  leasehold  property,  the  one  being  realty  and  the  other  per- 
sonalty. Even  if  the  bank  had  a  lien  on  this  property  by  virtue  of 
their  unretumed  writ  the  countermand  of  the  venditioni  exponas  re- 
moved that  lien.    This  is  the  smallest  effect  of  such  a  countermand ; 


Farmers'  Bank  et  al.  vs.  Sarah  H.  Massey,  189 

it  would  probably  amount  to  a  satisfaction ;  at  all  events  it  would  re- 
move the  lien  as  regards  a  bona  fide  purchaser  without  notice.  A  levy 
made  after  the  fi.  fa.  was  returnable  would  not  bind  —  the  return  two 
years  after  is  evidence  that  the  levy  was  made  too  late.  Either  on 
legal  principles,  then,  or  equitable,  we  are  entitled  to  the  protection 
afforded  us  by  the  chancellor's  decree. 

Booth,  for  appellants,  in  reply. 

How  can  Mrs.  Massey  be  regarded  as  a  purchaser  with  notice  ?  The 
house  and  lot  were  considered  by  all  as  real  property  and  were  sold  as 
such  by  proceedings  in  the  Orphans'  Court.  Mrs.  Massey,  taking  her 
title  under  those  proceedings,  had  notice  of  them  and  of  all  the  ac- 
companying circumstances.  The  judgments  and  liens  were  produced 
there.  She  thus  had  notice  of  and  purchased  subject  to  them.  The 
property  was  levied  on  as  freehold ;  inquired  on  as  such.  How  can  this 
be  a  less  binding  as  a  levy  if  the  interest  of  the  defts.  turn  out  to  be 
less  than  that  supposed  ?  Whatever  that  interest  is  it  covers,  especially 
where  the  levy  is  upon  a  greater  interest  than  that  possessed.  The 
greater  includes  that  less ;  and  a  levy  on  a  freehold  is  a  good  levy  on  a 
leasehold.  The  English  rules  of  seizing  property  on  execution,  and 
the  consequences  of  leaving  it  with  the  deft,  do  not  apply  here.  Our 
practice  is  different. 

Johns,  Jr.,  Chancellor,  delivered  the  opinion  6f  the  court. 

After  a  full  statement  of  the  case,  he  said  — 

"  The  only  question  necessary  to  be  considered  in  this  cause  is  as 
to  the  extent  and  effect  of  the  lien  and  levy  under  the  writ  of  fi.  fa. 
which  was  issued  April  22d,  1816,  and  returned  by  the  sheriff  in  the 
year  1818.  The  act  of  assembly  relative  to  execution  process  renders 
it  the  duty  of  the  sheriff  on  receiving  the  writ  of  fi.  fa.  to  make  the 
levy,  and  describes  in  a  very  special  manner  how  he  is  to  perform  his 
duty,  and  requires  that  he  should  particularly  specify  each  article  of 
personal  property  and  return  an  inventory  and  appraisement  of  the 
same  at  the  court  to  which  the  said  writ  is  made  returnable;  and  in 
case  of  failure  so  to  do,  by  the  said  act,  the  officer  is  made  liable  to  the 
execution  creditor  for  the  whole  amount  of  his  debt.  Dig.  207. 
Upon  a  proper  construction  of  the  provisions  of  this  act  the  sheriff  in 
this  case  having  returned  his  writ  and  made  no  inventory  and  ap- 
praisement as  therein  is  prescribed  the  right  of  the  plff.  to  any  further 
proceedings  under  the  said  writ  may  be  questioned.  Independent 
however  of  this  ground  it  is  well  settled  that  when  a  levy  has  been 
made  under  a  fi.  fa.  and  the  same  is  returned  with  an  inventory  and 
appraisement  the  lien  of  the  execution  is  limited  and  confined  to  the 
personal  property  actually  taken,  and  by  the  inventory  and  appraise- 
ment ascertained.  This  being  the  established  law  relative  to  execu- 
tion process  the  subsequent  proceedings  must  be  restricted  to  the  prop- 
erty levied  upon  by  the  fi.  fa.  on  which  they  are  founded ;  and  hence 
the  venditioni  exponas  cannot  give  authority  to  the  sheriff,  or  legally 
authorize  the  sale  of  personal  property  not  embraced  by  the  levy.  If 
then  we  apply  this  rule  of  law  to  the  case  before  the  court,  the  special 
return  made  by  the  sheriff  under  the  fi.  fa.  decides  the  question.  The 
return  made  by  Francis  Haughey,  sheriff,  is  in  the  following  words: 
*  Fi.  fa.  No.  81.    May  term  1816,  levied  on  goods  in  the  hands  of  the 


190  Heirs  of  P.  Reading  vs.  The  State. 

administrators  amounting  to  $ and  on  lands  as  per  inquisition 

annexed,  subject/  From  the  peculiar  phraseology  of  this  return  it  is 
manifest  the  sheriff  had  not  levied  upon  any  chattel  interest,  and  that 
the  leasehold  interest  in  the  lands  and  premises  mentioned  in  the  bill 
of  complaint  cannot  be  affected;  it  is  evidently  omitted;  and  from  the 
bill  and  answer  it  does  not  appear  that  at  the  time  of  the  levy  made, 
the  parties  complainant  and  defendant  had  any  knowledge  of  its  exist- 
ence. The  extent  of  the  lien  under  the  fi.  fa.  being  thus  ascertained 
and  defined  by  the  levy  and  return,  the  venditioni  exponas  could  not 
operate  further  than  to  authorize  a  sale  of  the  goods  of  the  intestate ; 
and  the  additional  words  "  and  on  land  as  per  inquisition  annexed 
subject "  are  from  their  import  restricted  to  the  freehold  interest,  and 
cannot  include  the  leasehold  interest.  The  alias  venditioni  exponas 
which  issued  could  have  no  larger  or  greater  operation  than  the  first. 
The  leasehold  interest  not  being  embraced  by  the  inventory  and  ap- 
praisement, and  the  fi.  fa.  having  been  returned  at  the  May  term, 
1818,  the  administrators  of  Massey,  the  intestate,  were  lawfully  in 
possession  of  the  leasehold  interest;  and  in  the  year  1817,  when  they 
made  sale  of  the  two-story  brick  house  and  premises  the  same  was  not 
subject  to  or  affected  by  any  lien  under  the  fi.  fa.  No.  81,  issued  by  the 
bank  in  April  1816;  and  as  administrators  they  had  power  to  sell  the 
same. 

The  Court  therefore  are  of  opinion  that  the  decree  below  be  af- 
firmed." 

Booth,  for  appellants.    Wales,  for  appellee. 


THE  HEIRS  AND  TEERE-TENANTS  OF  PHILIP  READING 
vs.  THE  STATE,  for  the  use  of  MARIA  WARD  late  MARIA 
READING. 

Matter  amounting  to  a  discharge  or  legal  payment  of  a  recognizance  cannot  be 

given  in  evidence  under  the  plea  of  paymeni,  but  should  be  pleaded  specially. 
Semble.     If  lands  bound  by  a  recognizance  in  the  Orphans'  Court  be  sold  under 

a  younger  judgment,  the  money  is  applicable  to  the  recognizance  and  the 

lien  is  discharged. 
But  in  an  action  against  one  of  the  recognizors  such  a  defence  can  not  be  set 

up  under  a  plea  of  payment. 
In  debt  on  a  bond,  or  sci.  fa.  on  a  recognizance,  every  thing  in  avoidance  or 

discharge  of  the  bond  or  recognizance  must  be  specially  pleaded. 
The  object  of  pleading  is  notice  to  the  other  side,  as  well  as  the  simplifying 

the  issues. 
Matters  which  amount  to  the  general  issue  cannot  be  specially  pleaded. 

Writ  of  error  to  the  late  Court  of  Common  Pleas,  Newcastle  county. 

This  was  a  scire  facias  upon  a  recognizance  in  the  Orphans'  Court 
acknowledged  by  Philip  Reading  on  the  16th  September  1813  in  the 
sum  of  $28,770  36,  on  the  acceptance  of  the  real  estate  of  Philip 
Reading  deceased,  and  conditioned  in  the  usual  form  for  the  payment 
to  the  other  children  of  Philip  Reading  deceased,  of  their  proportions 
of  $14,385  18,  the  appraised  value  of  said  lands. 

The  defts.  Iselow  pleaded  (inter  alia)  "  that  the  said  state  of  Dela- 
ware, the  now  plaintiff,  for  the  use  of  Maria  Ward  late  !Maria  Read- 
ing, ought  not  to  have  execution  against  them  nor  of  their  lands  for 
the  debt  aforesaid  by  virtue  of  the  said  recognizance  because,  protest- 
ing" &c.  "they  say  that  the  said  Philip  Reading  after  the  said  16th 


Heirs  of  P.  Reading  vs.  The  State,  191 

September,  1813,  and  after  the  times  of  payment  in  the  said  condition 
mentioned,  and  before  the  commencement  of  this  suit,  to  wit,  on  the 

day  of ,  A.  D.  18 — ,  at  Newcastle  county  afsd.  paid  to  the 

other  children  of  Philip  Reading,  deceased,  their  equal  and  propor- 
tionable shares  of  $14,385  18  in  the  said  condition  mentioned,  to- 
gether with  all  interest  then  due  thereon  according  to  the  form  and 
effect  of  the  said  condition  of  the  said  recognizance;  and  this  they 
are  ready  to  verify;  wherefore  they  pray  judgment"  &c.  On  this 
plea,  and  another,  issue  was  joined. 

"  The  counsel  for  the  defts.  to  maintain  and  prove  the  said  issues 

on  their  part  offered  in  evidence  a  judgment  at  the  suit  of 

against  William  Pryce,  one  of  the  recognizors  in  the  afsd.  recogni- 
zance; an  execution  on  that  judgment,  and  the  return  of  the  sheriff 
thereon  showing  the  amount  of  the  sales  of  the  lands  of  the  said 
William  Pryce ;  and  did  insist  before  the  said  court  that  although  no 
part  of  the  money  arising  from  the  said  sales  of  the  said  lands  had 
in  fact  been  applied  in  satisfaction  of  the  said  recognizance,  yet,  that 
as  in  law  the  money  so  arising  ought  to  have  been  applied  in  satis- 
faction of  the  said  recognizance,  the  said  judgment,  execution  and 
return  ought  to  be  received  in  evidence  under  the  plea  of  payment. 
But  to  this  the  counsel  for  the  said  plff.  did  object  and  insist  before 
the  said  court,  that  the  matters  so  offered  in  evidence  could  not  be  ad- 
mitted as  evidence  under  the  plea  of  payment  filed  in  the  said  cause, 
but  should  have  been  specially  pleaded  by  the  defts.,  to  have  enti- 
tled the  said  defts.  to  give  the  said  matters  in  evidence.  And  the 
said  justices  did  thereupon  declare  and  pronounce  it  to  be  their  opi- 
nion that  the  said  judgment,  execution  and  return  could  not  be  ad- 
mitted or  given  in  evidence  under  the  aforesaid  pleas,  and  the  same 
were  accordingly  rejected  and  not  to  be  allowed  to  be  given  in  evi- 
dence." Whereupon  the  counsel  for  the  said  defts.  did  except  to  the 
afsd.  opinion  of  the  said  justices.  The  plff.  had  a  verdict  and  judg- 
ment for  $1,284  17.  (Judges  Clayton,  Cooper  and  Stout  on  the 
bench. ) 

In  the  assignment  of  errors  the  second  and  only  one  relied  on  was 
the  following :  "  2.  For  that  the  said  justices  refused  to  permit  or  ad- 
mit the  counsel  for  the  defts.  in  the  said  scire  facias  to  give  or  exhibit 

in  evidence  to  the  said  jury  a  judgment  at  the  suit  of 

against  William  Pryce,  one  of  the  recognizors  in  said  recognizance, 
an  execution  on  that  judgment  and  the  sale  of  his  lands  on  that  exe- 
cution; whereas  the  said  justices  ought  to  have  permitted  the  said 
defts.  to  have  given  the  said  evidence  to  the  said  jury  under  the  plea 
'J.  payment." 

In  the  Court  of  Errors  and  Appeals  the  cause  was  submitted  with- 
out argument,  and  that  court  affirmed  the  judgment  of  the  Court  of 
Common  Pleas. 

Wales  und  Rogers,  for  plaintiff  in  error. 

J.  A.  Bayard,  for  defendant  in  error. 

The  following  opinion  was  drawn  up  but  not  pronounced.  The 
case  having  been  submitted  without  argument,  this  court  affirmed  the 
judgment  without  going  particularly  into  the  grounds;  it  was  under- 
stood, however,  that  they  concurred  in  the  views  here  presented : 


192  Heirs  OF  P.  Reading  vs.  The  State. 

"  This  is  a  scire  facias  on  a  recognizance  taken  in  the  Orphans*. 
Court.  The  plea  relied  on  is  payment;  and  according  to  the  terms 
of  the  plea  a  direct  and  absolute  payment  by  the  party  pleading.  The 
evidence  offered  to  maintain  this  plea  was  a  judgment  against  Wil- 
liam Pryce,  one  of  the  sureties  in  this  recognizance,  an  execution  and 
the  sale  of  his  lands.  It  was  not  insisted  or  pretended  that  any  part 
of  the  money  arising  from  this  sale  had  in  fact  been  applied  in  pay- 
ment of  this  recognizance,  but  it  was  contended  that,  in  law,  the  sum 
arising  from  this  sale  was  applicable  to  this  recognizance;  and,  there- 
fore, that  these  proceedings  should  be  admitted  in  evidence  to  prove 
payment  under  this  plea.  The  Court  of  Common  Pleas  thought  other- 
wise and  rejected  the  evidence. 

Two  questions  might  have  been  raised  by  the  plaintiff's  counsel, 
viz:  First.  Supposing  the  facts  relied  on  by  the  deft,  to  have  been 
specially  pleaded,  then  did  this  matter  amount  in  law  to  payment; 
or,  in  other  words,  did  the  sale  of  the  surety's  land  of  itself  amount 
to  a  satisfaction  of  this  recognizance?  Second.  Could  this  matter 
be  received  in  evidence  under  this  plea  of  absolute  payment?  The 
latter  question  was  the  only  one  before  the  Court  of  Common  Pleas. 
Both  are  now  open  to  this  court;  but  we  shall  confine  ourselves  to 
the  latter,     (a) 

Pleadings  are  designed  not  only  to  put  in  issue  single  points,  but 
to  apprise  the  parties  of  what  they  are  to  come  prepared  to  try.  It 
is  true  that  in  actions  of  debt  on  simple  contract,  in  actions  of  as- 
sumpsit, and  in  actions  of  trespass  on  the  case,  under  the  general 
issue,  which  puts  the  whole  declaration  in  issue,  almost  every  thing 
may  be  given  in  evidence  which  shows  that  the  plff.  at  the  time  of 
commencing  suit  had  no  cause  of  action.  But  in  an  action  of  debt 
on  a  bond,  or  a  scire  facias  on  a  recognizance,  every  thing  in  avoi- 
dance of  discharge  of  the  bond  or  recognizance  must  be  specially 
pleaded.  What  is  or  what  is  not  matter  in  discharge  of  a  bond  or 
recognizance  is  a  question  of  law  and  must  be  shown  to  the  court  by 
the  plea  that  they  may  see  why  the  action  does  not  lie;  and  being  a 
question  of  law  the  judges  are  to  determine  whether  it  discharges  or 
bars  the  plff.'s  action:  although  such  bar  or  matter  produced  by  the 
deft,  may  be  traversed  by  the  plff.  whether  it  be  true  or  not,  which 
subsequently  draws  it  to  the  determination  of  the  jury.  But  the  plff. 
is  not  bound  to  traverse ;  for  if  the  fact  be  true  he  may  admit  it  and 
demur;  and  thus  the  sufficiency  of  the  matter  alledged  in  the  plea 
is  submitted  to  the  court. 

We  hardly  think  it  necessary  to  mention  here,  and  yet  it  may  be, 
that  there  is  this  distinction  in  the  books  on  pleading,  that  the  mat- 
ters which  are  put  in  issue  by  the  general  issue  are  issues  of  fact, 
and,  therefore,  matters  of  evidence  to  be  tried  by  the  jury,  and  not  to 
be  referred  to  the  court.  For  this  reason,  it  is  an  invariable  rule  in 
pleading,  that  matters  which  amount  to  the  general  issue  cannot  be 
specially  pleaded.  But  matters  which  ought  to  be  specially  pleaded 
in  bar  are  matters  of  law  and  fit  only  for  the  determination  of  the 
court,  unless  the  plff.  by  his  traverse  denies  them  and  thus  draws  the 
determination  of  them  to  the  jury.  Ought  not  therefore  the  facts 
relied  upon  to  be  shown  by  the  plea  to  the  court  that  they  may  judge 
whether  they  be  in  law  a  bar  to  the  action?    Was  the  matter  relied 


Heirs  of  P.  Reading  vs.  The  State.  193 

on  as  a  defence  in  this  case  so  stated  that  the  court  could  form  any 
judgment  upon  it?  Had  the  plff.  any  opportunity  of  traversing  or 
demurring  to  these  facts?  On  this  general  plea  of  an  absolute  pay- 
ment he  M-as  obliged  to  reply  that  no  such  payment  had  been  made. 
He  was  driven  to  this,  for  to  this  plea  he  could  not  demur,  the  mat- 
ter contained  in  it  being  siifficient  in  law,  for  payment  is  a  good  plea. 

The  judgment  and  execution  against  Pryce  and  the  sale  of  his 
lands  were  not  matters  necessarily  within  the  knowledge  of  the  plff. 
They  were  transactions  inter  alios.  And  as  it  was  not  alledged  in 
this  case  that  any  part  of  the  proceeds  of  this  sale  was  in  fact  applied 
in  discharge  of  the  recognizance,  but  that  it  was  applicable  only  in 
law  to  the  payment  of  it,  the  plea  ought  in  justice  to  have  apprised 
the  plff.  that  the  defts.  meant  to  rely  on  this  matter  as  a  defence. 
Otherwise  the  plff.  might  have  been  surprised.  Having  no  notice  of 
the  matter  of  defence  she  could  not  be  supposed  to  come  to  the  trial 
prepared  to  meet  it.  It  might  be  that  there  were  other  judgments  or 
incumbrances  prior  to  this  recognizance  more  than  sufficient  to  have 
absorbed  the  whole  proceeds  of  the  sale;  and  yet  it  could  not  be  sup- 
posed that  the  plff.  would  be  prepared  to  show  them. 

We  have  not  been  able  to  meet  with  any  direct  authority  on  this 

(a)  State,  use  of  Thomas  Vickory  vs.  John  Vickory  and  terre-tenants. 

In  the  late  High  Court  of  Errors  and  Appeals,  June  term,  1828.  Error 
to  the  Court  of  Common  Please  for  Kent  county. 

This  was  a  sci.  fa.  on  a  recognizance  for  Thomas  Vickory's  share  of  the 
value  of  lands  ($264  56)  entered  into  by  John  Vickory  and  others.  The 
terre-tenants  appeared  and  pleaded  that  the  lands  bound  by  this  recogni- 
zance had  been  sold  by  the  sheriff  on  judgment  and  execution,  and  pay- 
ment by  the  sheriff. 

A  part  of  this  land  was  purchased  at  the  sheriff's  sale  by  William  Mas- 
ten  :  and,  as  to  that  part,  the  question  was  "  whether  the  land  should  be 
held  by  him  under  this  sale  discharged  of  the  recognizance."  Masten 
purchased  with  a  knowledge  of  Thomas  Vickory's  claim. 

J.  M.  Clayton  for  defts.  contended  that  the  sale  of  the  land  by  the 
sheriff  was  a  legal  payment  or  discharge  of  the  recognizance;  that  the 
money  arising  from  such  sale  was  applicable  to  it,  and  if  the  sheriff  had 
misapplied  it  he  was  liable.  He  showed  that  younger  judgment  liens  had 
been  paid  by  the  sale.  He  contended  that  this  was  in  accordance  with 
the  whole  system  of  our  law  which  favors  the  alienation  of  property,  and 
shuns  secret  liens.  That  it  imposed  no  improper  responsibility  on  the 
sheriff.  He  is  a  public  officer;  has  ready  access  to  the  records;  is  paid  for 
his  official  responsibilities,  and  may  protect  himself  by  the  payment  of 
the  money  into  court.  Suppose  the  land  to  be  sold  subject  to  the  recog- 
nizance, this  absurdity  will  arise.  The  land  is  valued  at  $1,580:  and  is 
not  worth  half  the  sum;  if  sold  subject  it  will  not  bring  a  cent  and  the 
first  cognizee  who  proceeds  loses  his  debt.  When  lands  are  assigned  under 
an  order  of  the  Orphans'  Court  the  assignee  takes  a  complete  title  both 
legal  and  equitable.  1  Del  L.  291 ;  2  Yeates  326.  It  is  not  like  the  title 
of  a  mortgagor,  his  interest  is  merely  an  equitable  one,  and  when  his 
land  is  sold  it  is  sold  subject  to  the  mortgage,  because  in  fact  nothing 
more  is  sold  than  the  mortgager's  equity  of  redemption.  The  purchaser 
under  a  venditioni  exponas  takes  a  title  clear  of  all  liens.  The  payment 
of  prior  judgments  by  the  sheriff  has  always  been  the  practice;  why 


19-t  Heirs  of  P.  Reading  vs.  The  State. 

very  point ;  but  the  analogies  of  other  cases,  the  precedents  and  prac- 
tice, and  the  general  principles  of  pleading,  all  show,  that  the  view 

should  he  not  be  bound  to  pay  prior  recognizances?  The  supreme  court 
has  several  times  decided  that  he  was  so  bound  —  in  The  State  use  Mor- 
gan vs.  Turner;  State  use  of  Stroud  vs.  Springer  and  State  use  of  White 
vs.  B roadie.  1  Del  Laws  114;  2  do.  1105;  6  do.  657;  7  do.  86;  4  Dallas  321. 

Ridgely,  on  the  other  hand,  contended  that  a  sale  of  the  land  by  the 
sheriff  did  not  discharge  the  recognizance  but  the  purchaser  took  subject 
to  it.  The  sheriff  was  not  bound  to  apply  the  proceeds  to  the  recogni- 
zance, nor  had  he  ever  in  the  practice  of  this  state.  At  common  law  none 
of  these  liens  not  even  judgments  were  discharged  by  a  sale  under  a 
yoimger  judgment.  Those  having  older  liens  could  not  have  their  rights 
affected  by  a  proceeding  to  which  they  were  not  parties.  A.  obtains  judg- 
ment against  B.  and  secures  it  by  a  lien  ori  his  real  estate,  and  goes 
abroad.  C.  gets  a  judgment  against  B.  and  sells  the  land.  The  money 
goes  into  the  hands  of  the  sheriff;  and,  if  A's  prior  lien  is  hereby  dis- 
charged, he  has  for  his  security  in  future  to  rely  on  the  sheriff,  whose 
bond  may  shortly  be  barred.  Our  own  act  of  assembly  changes  the  law 
as  to  judgments,  but  only  as  to  judgments,  a  recognizance  is  a  security 
of  a  very  different  nature,  and  you  must  extend  a  construction,  itself  con- 
trary to  a  common  law  principle,  far  beyond  the  act,  to  include  recogni- 
zances. Establish  the  principle  contended  for  on  the  other  side  and  in 
what  condition  do  you  place  your  sheriffs?  What  your  sureties?  It 
would  be  impossible  for  the  sheriff  to  pay  over  the  proceeds  of  any  sale 
without  the  utmost  danger;  he  would  therefore  throw  it  into  court  and 
let  the  parties  fight  for  it.  Again,  John  Vickory,  the  cognizor,  sold  off 
a  part  of  this  land  to  Willoughby ;  the  residue  only  has  been  sold  by  the 
sheriff.  Now  if  the  proceeds  of  this  sale  be  applicable  to  the  recogni- 
zance Willoughby's  land  will  be  discharged  and  Vickory's  judgment 
creditors  get  nothing.  Again.  If  the  sheriff  is  bound  to  pay  this  money 
to  the  recognizance,  how  is  he  to  ascertain  the  shares  of  each  cognizee? 
Some  of  them  may  be  infants  who  may  thus  be  deprived  of  all  remedy  for 
the  sheriff's  bond  must  be  sued  in  six  years.  1  Johns.  C.  R.  512;  13 
Johns.  R.  463,  533;  12  Wheat   177;  3  Yeates  561;  1  Del.  Laws  110. 

The  Court  of  Common  Pleas,  judges  Booth  and  Stout,  decided  that 
the  purchaser  took  the  land  subject  to  the  recognizance,  and  gave  judg- 
ment for  the  plaintiff ;  but  — 

The  High  Court  of  Errors  and  Appeals,  (Ridgely,  Chancellor,  being 
absent;  Clayton,  Chief  Justice  of  the  Common  Pleas,  declining  to  sit, 
having  been  of  counsel;  and  Cooper,  J.  dissenting)  reversed  the  judg- 
ment of  the  court  below. 

Johns,  Chief  Justice  of  the  Supreme  Court  delivered  the  opinion. 

The  question  is  whether  a  sale  by  the  sheriff,  under  a  junior  judgment, 
does  discharge  the  land  sold  from  the  lien  of  a  prior  recognizance;  or  is  the 
land  bound  by  such  recognizance  in  the  hands  of  the  purchaser.  The  law 
is  settled  by  practice  and  by  a  decision  of  the  Court  of  Appeals,  that  if  a 
sheriff  sell  land  under  a  junior  judgment,  he  is  bound  to  pay  off  the  older 
judftinents;  the  lien  of  these  judgments  is  lifted;  the  land  is  discharged 
from  them.  Is  there  any  difference  between  a  recognizance  and  a  judg- 
ment in  this  respect;  is  there  any  reason  that  a  different  rule  should  apply 
to  the  former.  They  are  both  general  liens,  and  the  court  cannot  make  a 
distinction.  We  are  of  opinion  that  the  sale  of  this  land  by  the  sheriff, 
under  a  junior  judgment,  did  in  its  legal  operation  discharge  the  land  from 


Heies  of 


tEADiNG  VS.  The  State. 


by  the  court  below  was  right.  If  there  be  two  or  more  obligors,  a 
release  to  one  is  a  release  to  all,  whether  the  bond  bie  joint,  or  joint 
and  several.  If  A.  and  B.  be  bound  by  a  bond,  and  A.  be  released 
and  B.  be  sued,  he  must  plead  it  not  as  a  release  to  him,  but  he  must 
plead  the  fact  as  it  exists,  the  release  to  A.,  and  this  fact  being 
shown  to  the  court  they  are  bound  to  draw  the  legal  conclusion  that 
a  release  to  A.  is  a  release  to  his  joint  obligor  B.  So  it  is  whether 
tlie  release  be  by  deed  or  by  operation  of  law;  for  where  the  obligee 
in  a  joint  and  several  bond  makes  one  of  the  two  obligors  his  execu- 
tor, who  administers  and  dies,  the  surviving  obligor  is  discharged. 
Yet  in  an  action  against  him  he  must  specially  plead  all  the  facts 
constituting  his  defence.  If  a  feme  obligee  take  the  obligor  to  hus- 
band, this  is  a  release  in  law.  Yet  if  the  husband  should  die  and  the 
Avidow  should  sue  his  executor,  he  must  plead  the  facts  of  marriage, 
and  the  court  are  to  judge  whether  this  be  not  a  release  in  law. 

The  whole  difficulty  in  this  case  arises  from  the  loose  and  negligent 
manner  of  pleading  in  this  state.  The  word  ''  payment "  is  put  upon 
tlie  record,  and  that  is  generally  supposed  to  embrace  all  manner  of 
payment,  although  we  think  erroneously,  for  it  can  mean  nothing 
more  than  a  general  absolute  payment.  And  yet  in  these  cases  of 
the  short  plea  of  payment  it  is  most  frequently  attended  with  leave 
to  give  the  special  matter  in  evidence  where  any  special  matter  is 
relied  on.  But  in  this  case  the  plea  is  formally  drawn  up  —  it  pre- 
sents the  case  of  an  absolute  payment  and  nothing  more.  The  Com- 
mon Pleas,  thought  that  the  facts  relied  on  as  constituting  a  pay- 
ment, or  rather  a  discharge,  for  it  is  no  payment,  ought  to  have 
been  set  out  in  the  plea,  that  the  court  might  judge  of  their  suffi- 
ciency; that  it  might  see  wliether  they  amounted  to  a  legal  discharge. 
They  surely  do  not  amount  to  a  payment  either  in  the  legal  or  the 
ordinary  sense  of  that  term.  If  any  thing,  they  amount  to  a  legal 
discharge.  But  suppose  these  facts  for  a  moment  can  be  imagined  to 
constitute  a  payment:  they  are  not  mere  matters  of  evidence  but  facts 
which  should  have  been  specially  set  out  in  the  plea.  The  Court  of 
Common  Pleas  therefore  properly  rejected  the  evidence  on  the 
ground  that  the  matter  relied  on  was  no  payment,  but  if  any  defence 
merely  a  legal  discharge,  and  as  such  ought  to  have  been  pleaded. 
5  Bac.  Abr.  371;  Pleas.  G.  3;  1  CUtty  481;  1  Tidd.  596;  5  Comyn. 
401;  Pleader  £'.  15;  2  Lord  Raymond  1072;  Lill.  Ent.  394,  6:  2  do. 
422,  480. 

Where  judgment  is  recovered  against  one  and  an  execution  is  is- 
sued and  delivered  to  the  sheriff  who  levies  it  on  the  goods  of  the 
deft,  this  matter  may  be  afterwards  pleaded  in  bar  to  a  scire  facias 
on  this  judgment,  but  the  facts  must  be  specially  set  forth  in  a  plea." 

the  recognizance,  and  the  sheriff  was  bound  to  pay  off  the  recognizance 
from  the  proceeds  of  the  sale.  The  judgment  of  the  Court  of  Common 
Pleas  must  therefore  be  reversed ;  and  the  deft,  in  error  pay  the  costs,  &c. 
Cooper,  Jus.  dresented,  and  gave  his  reasons  at  length.  Recognizances 
differ  from  judgments  in  this,  they  cannot  be  executed  without  resort  to 
a  court  of  law  and  suit  brought.  He  regarded  the  act  of  assembly  as 
not  giving  to  the  acceptor  of  lands  in  the  Orphans'  Court,  any  thing 
more  than  an  equitable  title  until  payment,  the  legal  title  remaining  in 
the  heirs  at  law.  Hence  he  concluded  that  the  land  should  always  be 
sold  subject  to  the  claims  of  the  cognizees. 


196  Coleman  vs.  AVaples. 


THOMAS  COLEMAN,  appellant  complt.  b.  vs.  PETER  WAPLES, 

appellee,  respt.  b. 

Husband  takes  the  wife's  property  by  force  of  the  marital  right  and  not  as  a 

purchaser. 
He  therefore  takes  the  rights  of  the  wife  subject  to  all  equities,  &c. 

Appeal  from  Chancery,  Sussex. 

Thomas  Coleman  being  the  administrator  of  William  Coleman,  sold 
to  Khoda  Coleman,  the  widow  of  the  said  William,  or  permitted  her 
to  take,  at  the  appraised  value,  sundry  articles  of  personal  property 
belonging  to  the  estate  of  the  said  William,  to  the  amount  of  $551  28; 
and,  at  the  bottom  of  the  list  of  the  said  articles,  the  said  Rhoda  Cole- 
man executed  and  delivered  to  the  said  Thomas  the  following  receipt 
and  pledge : 

"'  Received  April  9,  1829,  of  Thomas  Coleman,  administrator  of 
William  Coleman,  deceased,  the  sum  of  $551  38,  it  being  in  full  for 
my  one  third  part  of  the  personal  estate  of  the  afsd.  William  Cole- 
man, deceased;  and  I  do  hereby  promise,  agree  and. oblige  myself  and 
my  heirs,  executors  and  administrators  that  whatever  sum  there  may 
be  overpaid  to  me  by  the  said  Thomas  Coleman,  over  and  above  my 
one  third  part  of  the  personal  estate  of  the  afsd.  William  Coleman, 
deceased,  that  I  will  refund  and  pay  back  to  him  the  said  Thomas 
Coleman,  or  to  his  heirs  or  assigns,  on  demand,  with  interest  from 
this  date.  And  I  do  further  agree,  and  it  is  understood  (by  the  par- 
ties) that  the  property  in  the  within  inventory  mentioned  shall  be 
and  remain  bound  and  liable  for  the  payment  of  'such  sum  of  money 
so  overpaid  to  me  by  the  said  Thomas  Coleman  as  administrator  as 
afsd.,  and  that  the  right  and  property  of  all  the  said  goods  and  ar- 
ticles is  and  shall  remain  in  the  said  Thomas  Coleman  until  such 
sum  of  money  is  fully  paid  and  discharged.  Witness  my  hand  the 
dav  and  year  above  written. 

(Signed.)     RHODA  COLEMAN. 
.  Witness  present  —  Comfort  Hudson.'* 

On  a  settlement  of  the  estate  of  William  Coleman  there  appeared 
to  be  a  balance  due  the  said  estate  of  $1017  12,  the  one  third  whereof 
$339  04  was  the  share  of  the  said  Rhoda,  making  the  sum  overpaid 
her  as  afsd.  $212  34.  William  Coleman  died  in  March  1829.  In 
August  1829,  Rhoda  Coleman,  his  widow,  married  Peter  Waples,  into 
whose  possession  the  said  property  went,  and  in  February  1830,  the 
said  Rhoda  died. 

Coleman  filed  his  bill  charging  that  the  said  receipt  and  agreement 
created  a  lien  in  his  favor  on  all  the  said  property  in  the  nature  of  a 
pledge  or  mortgage  for  the  sum  so  overpaid  to  Rhoda  Coleman;  and 
insisting  that  the  said  property  was  subject  to  such  lien  in  the  hands  of 
Waples  whom  he  treated  as  a  trustee.  Waples  in  his  answer  admit- 
ted all  the  material  facts  in  the  bill;  but  insisted  that  he  took  the 
said  goods  under  no  lien  or  trust  whatever;  that  on  a  change  of 
the  possession  of  the  goods  the  receipt  and  agreement  could  operate 
only  to  establish  a  debt  due  from  Rhoda  Coleman,  his  late  wife,  for 
which  he  was  not  now  answerable.  On  the  hearing  below  the  Chan- 
cellor dismissed  the  complainant's  bill,  and  from  this  decree  an  ap- 
peal was  taken. 


Coleman  vs.  Waples.  197 

Frame  for  the  appellant. 

The  principal  question  in  the  cause  is,  whether  these  goods,  traced 
as  they  are  to  the  hands  of  Peter  Waples,  the  respondent,  are 
bound  specifically  by  the  agreement  of  his  late  wife ;  or  whether  they 
are  discharged  in  his  hands  from  any  such  lien.  The  chancellor  de- 
cided they  were  not  liable,  but  the  cause  was  not  debated.  First. 
What  was  the  effect  of  this  agreement  as  between  the  original  par- 
ties? Were  the  goods  bound  in  the  hands  of  Rhoda  Coleman,  before 
her  marriage  with  Waples?  The  chancellor  considered  it  in  the  na- 
ture of  a  pledge  or  pawn,  which,  the  pawnor  keeping  possession, 
created  no  lien.  But  viewing  it  in  that  light  it  would  not  be  void  as 
against  the  pawnor,  but  only  against  bona  fide  purchasers  and  cred- 
itors. It  would  be  binding  as  between  the  original  parties  although 
the  possession  was  retained  by  the  pawnor.  Where  there  is  a  writ- 
ten contract  of  pledge,  the  pledgor,  though  retaining  possession  is 
bound  by  it.  I  agree  to  the  general  principle,  that  a  pawn  is  void 
without  delivering  possession,  because  the  keeping  possession  is  a 
badge  of  fraud.  But  this  fraud  can  only  relate  to  third  persons; 
and,  as  the  reason  of  avoiding  the  contract  does  not  apply  to  the 
original  parties,  the  contract  is  not  void  as  relates  to  them.  The 
authority  of  Kent/ must  be  so  understood.    2  Kent  Com.  581. 

But  this  is  not  a  mere  pawning ;  it  is  distinguishable  in  at  least  one 
of  the  most  striking  particulars,  the  property  namely,  being  vested 
in  the  pawnee.  This  is  a  mortgage,  and  the  distinction  between  a 
pledge  and  a  mortgage  is  that  in  the  former  the  general  property  re- 
mains in  the  pawnor  and  the  pawnee  has  merely  a  special  property; 
in  a  mortgage  the  general  property  vests  in  the  mortgagee  and  a 
special  property  only  in  the  mortgagor,  to  wit:  the  right  to  redeem. 
A  mortgage  of  goods  may  be  good  without  delivery.  In  this  case 
the  parties  expressly  agree  and  contract  that  the  general  property 
shall  remain  and  be  in  Coleman  the  mortgagee.  This  contract  is 
therefore  a  mortgage.*  It  would  require  no  precise  form  of  words 
€ven  in  a  court  of  law  to  make  a  mortgage  much  less  in  equity 
where  the  intent  of  the  parties  will  be  sought  and  executed.  If 
the  terms  implied  an  absolute  contract  of  sale,  this  court  would 
make  it  a  mortgage  if  the  parties  so  designed  it.  2  Kent  Com.  577 ; 
H  Caine's  Cases  in  Error  202;  Whitaher's  laiu  of  liens  128;  5 
Bac.  Ahr.  6.  tit.  Mortgage  B.  Rhoda  Coleman  being  bound  by 
this  agreement;  the  mortgage  being  valid  as  between  Coleman  and 
her;  the  next  question  is,  whether  her  husband  is  also  bound.  This 
proceeding  is  not  to  charge  the  husband  of  a  deceased  wife  with  her 
deht,  we  contend  for  no  such  principle:  but  the  question  is  whether 
these  specific  goods,. traced  as  they  are  into  his  possession,  bound  at 
the  time  of  going  into  it  by  a  mortgage,  are  not  still  bound,  or  are 
they  discharged  ?  Upon  what  principle  are  they  discharged  ?  We  have 
shown  that  Mrs.  Coleman  transferred  the  general  property  in  these 
goods  to  the  complainant.  Peter  Waples  married  her  and  took  her 
rights  and  no  more.  Upon  what  principle  of  law  or  equity  could  he 
obtain  a  right  in  this  property  which  she  had  not?  The  proposition 
thus  stated  shows  its  absurdity.  It  is  against  all  the  principles  of  law 
applicable  to  husband  and  wife.  How  should  the  marriage  enlarge 
her  property,  or  divest  the  complainant's  lien?    Is  it  the  possession  of 


198  COLEHAK  VS.  WaPLES. 

the  wife,  or  the  want  of  notice  to  the  husband?  That  possession  is 
not  incompatible  with  the  mortgage,  or  even  with  a  naked  pledge  as 
relates  to  the  wife;  and  the  husband,  taking  merely  by  force  of  the 
marriage,  stands  precisely  in  the  same  condition.  The  chancellor's 
error  was  in  treating  the  husband  as  a  purchaser,  coming  in  on  a  con- 
sideration. I  admit  that  marriage  is  frequently  a  valuable  consid- 
eration, but  it  must  be  in  a  case  where  a  consideration  applies;  as  in 
marriage  articles,  settlement,  jointure,  &c.  The  consideration  is 
always  connected  with  a  contract;  but  tliere  is  no  such  thing  here: 
the  husband  takes  the  wife's  rights  by  force  of  law,  and  he  takes 
them  subject  to  all  the  equities  connected  with  them.  He  can  take 
no  interest  larger  or  other  than  that  of  the  wife.  A  husband  taking 
by  marital  right  is  not  esteemed  a  purchaser  for  a  valuable  considera- 
tion. He  takes  the  right  of  the  wife.  And  notice  is  immaterial. 
The  husband  cannot  be  defrauded  in  this  respect,  and  is  not  entitled 
to  notice.  It  is  not  pretended  that  this  tiling  was  done  on  the  eve  of 
marriage  to  defraud  the  husband.  This  does  not  fall  within  that 
class  of  cases.  Clancy  on  married  women  1.  2;  2  Blac.  Com.  433; 
7  Vezey,  jr.  184;  Dig.  75;  2  Kent  Com.  515. 

If  1  have  shown  that  there  is  no  difference  between  the  wife  and 
the  husband  in  relation  to  the  lien  on  this  property,  the  decree  is  er- 
roneous and  must  be  reversed.  And  this  though  it  should  turn  out 
on  an  account  taken  that  nothing  is  due  to  complainant.  The  proof 
on  the  other  side  does  not  go  to  the  fact  that  there  has  been  an  over- 
payjnent  by  the  administrator,  but  only  that  he  has  not  fully  admin- 
istered. The  chancellor  then  should  have  retained  the  bill  and  or- 
dered an  account. 

Mr.  Layton,  for  appellee. 

The  counsel  is  mistaken  Avith  regard  to  the  ground  on  which  the 
chancellor  decided  this  cause.  He  regarded  this  as  a  sale  of  the  ar- 
ticles, and  referred  to  the  act  of  assembly  avoiding  bills  of  sale  un- 
accompanied by  possession. 

This  agreement  is  on  the  part  of  Rhoda  Coleman,  an  acknowledg- 
ment of  a  debt  upon  a  contingency;  that  if  on  a  settlement  of 
William  Coleman's  estate  it  should  be  found  that  the  $551  29  was 
more  than  one  third  of  the  estate,  she  would  repay  the  excess.  The 
complainant  has  not  made  a  final  settlement  of  the  estate  of  William 
Coleman,  nor  has  he  filed  in  the  register's  office  a  list  of  debts,  &c. 
The  agreement  is  binding  merely  as  a  debt  due  from  the  wife,  for 
which  the  husband  would  be  liable  if  sued  during  his  wife's  life,  but 
not  after.  3  P.  Wms.  410;  1  Sell.  &  Lef.  263;  1  P.  Wms.  462. 
The  complainant  having  omitted  to  pursue  the  only  remedy  to  which 
he  was  entitled  while  the  husband  was  liable  must  now  abide  the 
legal  consequence  of  his  neglect. 

We  don't  contend  that  this  agreement  is  a  pledge  merely  of  the 
property.  Yet  there  is  a  distinction  between  mortgages  of  real  and 
of  personal  estate.  The  possession  of  personal  property  is  evidence 
of  title.  Thomas  Coleman  suffered  Bhoda  to  appear  to  the  world  as 
the  owner  of  this  property.  It  was  a  fraud  on  the  public;  a  fraud 
on  the  appellee.  The  property  thus  in  her  possession  might  have 
been  the  consideration  of  his  marriage.  The  agreement  is  analogous 
to  a  bill  of  sale,  and  void  by  our  statute.     (Digest  1l?>.)     In  this 


ir 


CoLEMAX  VS.  Waples.  199 


! 


case  the  husband  will  be  considered  a  purchaser  for  a  valuable  con- 
sideration. Whit,  on  Liens  65;  Rohts.  on  Fraud,  conv.  103,  4. 
If  a  person  advances  money  on  the  credit  of  a  pledge  of  goods  not 
delivered,  it  is  a  mere  personal  credit  and  not  a  specific  lien.  1 
Atkins.  194  (165.)  Mortgagees  of  goods  permitting  a  bankrupt  to 
remain  in  possession  have  no  specific  lien  against  general  creditors. 
1  Ves.  sen.  348. 

J.-M.  Clayton,  for  the  appellee. 

The  first  consideration  is  the  distinction  between  real  and  personal 
property;  between  conveyances,  mortgages  and  conditional  sales  of 
real  and  personal  property.  In  the  case  of  conditional  sales  of 
lands,  annuities,  grants  on  land,  &c.  the  third  party  affected  by  the 
condition  or  lien  is  bound  to  look  at  the  title.  Precisely  the  reverse 
is  the  law  of  personal  estate.  The  possession  is  always  evidence  of 
title.  In  case  of  an  annuity  charged  on  a  leasehold  the  marriage  will 
not  avoid  the  mortgage,  but  all  conditional  sales  of  goods  where  the 
party  remains  in  possession  are  within  the  statutes  of  Jac.  and  Eliz. 
And  in  all  cases  where  the  marital  rights  come  into  collision  with 
claims  under  conditional  sales  of  personal  property  within  those 
statutes,  the  husband  will  be  regarded  as  a  purchaser  and  take  on  the 
idea  of  a  consideration.  The  statutes  of  fraud  are  declaratory  of  the 
common  law.  A  mortgage  equally  with  a  sale  of  goods  is  fraudu- 
lent and  void  if  possession  be  not  given:  void  as  against  purchasers 
without  notice.  That  is  this  case.  Waples  is  a  purchaser  without 
notice.  The  arrangement  held  out  a  fictitious  credit  to  the  world 
and  operated  as  a  fraud.  Complainant  sold  the  goods  to  Ehoda  Cole- 
man and  gave  her  possession;  took  from  her  on  the  same  day  a  re- 
ceir)t  contradicting  the  sale  and  attempting  to  keep  the  title  to  the 
p^opert5^  Ehoda  Coleman  continued  in  possession  and  seemed  the 
owner  to  the  world.  Waples  married  her  and  the  complainant  now 
seeks  to  charge  him  on  this  def  eazance.  Does  not  this  come  within 
the  danger  of  fraud;  does  it  not  actually  operate  a  fraud  on  Waples? 
If  he  was  merely  liable  to  be  defrauded  he  is  protected  by  the  com- 
mon law  of  which  the  statutes  of  frauds  are  only  declaratory.  The 
case  in  7  Vezey  is  an  annuity  on  a  rent  charge,  charged  on  a 
chattel  real  and  registered.  We  don't  contend  that  marriage  would 
remove  such  a  lien.  There  the  husband  is  bound  to  look  to  the  title. 
1  Burr.  467;  Fitzgihhon  207,  212;  Rob.  Fraud.  557,  101.  5-6;  2 
Kent  Com.  515,  523-4.  If  this  be  a  mortgage  of  the  goods  it  car- 
ried the  legal  title  in  them  to  Thomas  Coleman,  and  is  void  for  want 
of  possession.  It  is  of  no  importance  whether  it  be  considered  a 
pawn,  mortgage  or  absolute  bill  of  sale;  it  is  equally  void.  The  ef- 
fect of  it  is  a  surrender  on  the  part  of  Ehoda  Coleman  of  the  title  to 
the  property  while  she  retains  possession.    This  is  fraudulent  and  void. 

Again.  The  right  to  recover  back  is  by  the  terms  of  the  instrument 
to  accrue  upon  ascertaining  an  overpayment  by  a  settlement  of  the 
estate.  It  is  in  proof  that  the  estate  is  not  settled.  How  then  can 
there  be  a  recovery  until  it  appears  that  something  is  due. 

Frame  in  reply. 

Was  directed  to  confine  himself  to  the  question  whether  the  hus- 
band was  to  be  considered  in  this  case  a  purchaser  for  a  valuable  con- 
sideration. 


200  Cochran  vs.  Evans'  adm'r. 

The  idea  of  a  purchaser  for  valuable  consideration  implies  a  con- 
tract. Purchase  has  a  specific  legal  meaning;  it  implies  a  sale  and 
a  vendor.  The  statute  frauds  applies  to  such  purchasers  and  to  cred- 
itors. It  does  so  with  reason,  because  such  might  be  defrauded  by 
the  simulative  ownership  attendant  on  the  possession,  but  this  rea- 
son fails  in  the  case  of  a  husband.  How  can  he  be  defrauded?  He 
may  be  disappointed,  but  he  takes  the  legal  result  of  his  marriage, 
the  rights  simply  of  his  wife.  The  possession  of  property  by  the 
wife  cannot  be  called  a  consideration  for  the  marriage  though  it  may 
form  an  inducement  to  it.  The  proposition  that  a  husband  by  force 
of  the  marriage  becomes  a  purchaser  of  the  wife's  property  is  absurd. 
I  agree  that  where  a  sale  is  made,  or  other  contract,  in  consideration 
of  marriage,  it  is  a  valuable  consideration,  but  this  is  not  that  case. 
The  husband  here  takes  no  title  from  the  act  of  the  wife,  but  alto- 
gether from  the  act  of  the  law;  by  operation  of  law.  The  case  in 
Vezey  is  express,  "  The  husband  taking  by  marital  right  is  not  es- 
teemed a  purchaser  for  valuable  consideration.  How  can  the  charac- 
ter in  which  the  husband  takes  be  varied  by  the  kind  of  property 
whether  real  or  personal  ?  It  may  vary  as  to  the  effect  of  the  convey- 
ance but  not  as  to  the  character  of  the  taker.  Roberts  relates  to 
convevances,  and  Kent  to  purchasers  and  creditors.  1  Black.  Com. 
461;  i  Vezey,  sen.  348;  1  Aik.  (165)  194. 

The  court  reversed  the  decree  of  the  chancellor  and  decreed  an 
account  to  be  taken. 


FRANCES  L.  COCHRAN  vs.  DR.  JAMES  COUPER,  Adminis- 
trator d.  b.  n.  c.  t.  a.  of  DR.  THOMAS  EVANS,  deceased. 

If  a  material  fact  stated  in  the  bill  be  neither  admitted  nor  denied  in  the 

answer,  the  complainant  must  prove  it  at  the  trial. 
What  is  admitted  need  not  be  proved;  but  what  is  not  denied  is  not  therefore 

admitted. 
A  private  act  of  assembly  must  be  pleaded  and  proved. 

Appeal  from  the  decree  of  the  chancellor  in  and  for  Newcastle 
county. 

The  bill  stated  that  Doctor  Evans  by  his  will  bequeathed  to  Fran- 
ces L.  Evans,  the  complainant,  the  interest  on  £400  to  be  paid  to  her 
annually  during  her  life.  That  letters  of  administration  d.  b.  n.  c. 
t.  a.  were  granted  on  the  estate  of  Dr.  Thomas  Evans  to  the  respond- 
ent, Dr.  James  Couper.  That  Mrs.  Evans  afterwards  married  with 
Joseph  W.  Cochran;  that  the  said  annuity  was  paid  up  to  the  vear 
1816;  "that  by  an  act  of  the  general  assembly  of  the  state  of  Dela- 
ware, passed  at  Dover  on  the day  of 182 — ,  upon  the  ap- 
plication of  the  said  Frances  L.  Cochran,  and  on  the  ground  of  mis- 
conduct of  the  said  Joseph  W.  Cochran,  the  bonds  of  matrimony 
theretofore  existing  between  the  said  Frances  L.  and  Joseph  W. 
Cochran  were  dissolved  and  declared  and  made  null  and  void  to  all 
intents,  as  by  the  said  act  which  the  complainant  has  ready  to  pro- 
duce at  the  hearing  of  this  cause  will  more  fully  appear."  The  bill 
then  set  forth  that  the  said  annuity  had  not  been  paid  to  complain- 


I 


I 


[locHRAN  VS.  Evans  adm  r. 

ant  since  the  divorce,  and  prays  an  account  and  a  decree  for  payment 
of  the  same,  &c. 

Doctor  Conper  in  his  answer  admitted  the  bequest;  his  adminis- 
tration and  settlement  of  the  estate  of  Doctor  Evans,  and  that  there 
Wiis  a  balance  in  his  hands  of  $45G  03.  He  admitted  the  marriage 
of  complainant  with  Joseph  W.  Cochran  "  but  deft,  docs  not  know 
whether  the  bonds  of  matrimony  were  dissolved  in  the  manner  set 
forth  in  the  bill;  this  deft,  cannot  further  answer  than  that  he  has 
heard  that  an  act  of  the  general  assembly  was  passed  in  relation  to 
the  preinises;  this  deft,  cannot  therefore  answer  whether  or  not  the 
said  complainant  become  entitled  to  demand  and  receive  the  yearly 
interest  afsd.  after  the  passage  of  the  said  act  of  assembly." 

The  complainant  replies  and  defendant  rejoins  gratis. 

On  the  hearing  the  Chancellor  decreed  "  that  the  bill  be  dismissed 
because  of  the  want  of  proof  of  a  material  allegation,  to  wit:  the  di- 
vorce of  the  said  complainant." 

"Whereupon  an  appeal  was  prayed  and  granted. 

Wales,  for  appellant. 

Frances  L.  Cochran  was  entitled  to  this  money  as  the  widow  of 
Doctor  Evans.  Her  right  to  it  was  not  put  in  issue  by  the  answer 
of  the  deft,  and  therefore  it  was  not  necessary  to  be  proved.  The 
fact  of  the  divorce  was  not  denied.  The  decree  must  be  founded  on 
the  matters  contested;  those  facts  put  in  issue  by  the  deft's.  denial. 
Equity  like  the  law  must  decide  according  to  the  allegations  and 
proofs;  the  matters  in  issue.  We  say  that  the  divorce  was  not  put 
in  issue  in  this  cause.  The  respondent,  as  far  as  he  does  answer  ad- 
mits the  divorce;  at  least  he  does  not  deny  it,  and  therefore  does  not 
put  it  in  issue,    19  Johns.  R.  496;  6  Johns.  R.  543. 

Read,  jr.  for  appellee : 

We  Avere  prepared  to  go  into  the  merits  of  the  case  and  thought  our- 
selves safe  on  them.  But  the  chancellor  chose  to  confine  the  case  to 
this  point.  Here  was  a  married  woman  sueing;  the  bill  shows  that 
she  was  a  married  woman,  and  without  establishing  a  divorce  she  had 
no  right  to  sue.  The  bill  alleges  that  she  is  divorced,  but  this  allega- 
tion is  not  admitted  in  the  answer,  and  the  issue  made  up  is  on  all 
points  not  admitted.  The  divorce  is  a  private  act,  not  in  the  knowl- 
edge of  the  deft,  and  it  must  be  shown  affirmatively.  For  want  of 
proof  of  this  material  fact  the  decree  went  against  the  complainant. 

Again.  Is  an  appeal  the  proper  remedy?  Should  it  not  have  been 
by  motion  to  the  court  to  amend?  The  bill  was  dismissed  for  want 
of  proper  parties.    The  cases  from  Johns.  Rep.  do  not  apply. 

Wales,  in  reply : 

The  bill  states  the  marriage  and  the  divorce;  neither  of  them  is  de- 
nied. If  the  respondent  objects  to  the  bill  for  want  of  proper  parties 
he  ought  to  have  demurred  for  that  cause.  We  were  no  more  bound 
to  prove  the  divorce  than  we  were  bound  to  prove  that  the  complain- 
ant was  the  widow  of  Doctor  Evans.  Unless  the  point  be  raised  by 
the  issue  made  up  the  party  is  not  bound  nor  would  be  admitted  to 
prove  it.      The  replication  in  chancery  puts  in  issue  all  the  facts 

26 


202  Cochran  vs.  Evans'  adm'r. 

stated  in  the  auswer,  but  the  answer  only  puts  in  issue  those  facts 
stated  in  the  bill  which  are  denied  in  the  answer.  What  the  re-, 
spondent  does  not  deny  he  admits;  and  it  is  not  true  that  the  com- 
plainant is  bound  to  prove  all  that  is  not  expressly  admitted,  he  is 
only  bound  to  prove  what  is  denied. 

Curia  advisare  vult. 

Mr.  Justice  Harrington  delivered  the  opinion  of  the  court. 

Harrington,  J. — "  The  bill  in  this  case  was  filed  for  the  arrears 
of  an  annuity,  being  the  interest  on  £400,  bequeathed  by  the  will  of 
Doct.  Evans  to  his  widow  Frances  h'.  Evans.  The  bill  states  that 
Mrs.  Evans  was  subsequently  married  to  Joseph  W.  Cochran,  and 
then  sets  out  that  'by  an  act  of  the  General  Assembly  of  the  state  of 

Delaware  passed  at  Dover  on  the day  of 182 — ,  upon  the 

application  of  the  said  Frances  L.  Cochran  and  on  the  ground  of  mis- 
conduct of  the  said  Joseph  W.  Cochran,  the  bonds  of  matrimony 
theretofore  existing  between  the  said  Frances  L.  and  Joseph  W.  Coch- 
ran, were  dissolved  and  declared  and  made  null  and  void  to  all  in- 
tents; as  by  the  said  act,  which  the  complainant  has  ready  to  pro- 
duce at  the  hearing  of  this  cause,  will  more  fully  appear.' 

The  answer  of  Doct.  Couper  admits  the  marriage  of  Mrs.  Evans 
with  Joseph  W.  Cochran;  and,  in  relation  to  the  divorce,  it  states 
*  that  the  deft,  does  not  know  whether  the  bonds  of  matrimony  were 
dissolved  in  the  manner  set  forth  in  the  bill '  and  that  he  *  cannot 
further  answer  than  that  he  has  heard  that  an  act  of  the  General  As- 
sembly was  passed  in  relation  to  the  premises,'  he  *  cannot  therefore 
answer  whether  or  not  the  said  complainant  become  entitled  to  de- 
mand and  receive  the  yearly  interest  aforesaid,  after  the  passage  of 
the  said  act  of  assembly.' 

The  question  below  and  in  the  Court  of  Appeals  was,  whether  thi» 
answer,  with  the  replication  and  rejoinder  which  were  general,  put  in 
issue  the  fact  of  the  divorce,  and  rendered  the  proof  of  that  fact  nec- 
essary. It  was  contended  on  the  part  of  the  appellant  that  the  di- 
vorce was  not  put  in  issue  by  the  answer;  that  whatever  was  not  de- 
nied was  admitted,  and  that,  unless  an  issue  was  made  up  by  the  ex- 
press denial  of  a  fact  stated  in  the  bill,  the  complainant  was  not  bound 
to  produce  any  evidence  of  that  fact  since  it  could  form  no  part  of 
the  matters  in  controversy  on  which  the  decree  was  to  be  rendered. 

The  rule  in  equity  is,  that  what  a  deft,  admits  by  his  answer,  the 
plff.  need  not  prove;  Coop.  Eg.  445;  but  the  question  in  this  case 
is  whether  the  extension  of  this  rule  is  also  true,  that  what  the  deft. 
does  not  deny,  he  admits.  An  answer  usually  begins  by  a  reserva- 
tion to  the  deft,  of  all  advantage  which  may  be  taken  of  exception 
to  the  bill,  a  form  which  Maddock  says,  was  probably  intended  to 
prevent  a  conclusion  that  the  deft,  having  submitted  to  answer  the 
bill,  admitted  every  thing  which  by  his  answer  he  did  not  expressly 
controvert.  2  Mad.  Chy.  333.  If  this  be  the  principle  of  the  re- 
servation it  is  inconsistent  with  the  rule  contended  for  in  this  case. 

The  practice  of  excepting  to  answers  for  insufficiency  also  contro- 
verts the  position  assumed  by  appellant's  counsel.     If  the  operation 


Cochran  vs.  Evans'  adm'r,  203 

of  an  insufficient  answer  be  to  dispense  with  the  proof  of  the  fact  as- 
serted, why  should  the  plff.  except  to  it?  He  has  all  by  that  insuffi- 
ciency that  he  could  hope  for  by  full  answer  admitting  the  fact. 
The  complainant  is  authorized  in  equity  to  make  the  deft,  a  witness 
to  a  certain  extent  against  himself.  He  may  call  on  him  to  answer  as 
to  certain  facts  which  he  alledges  to  be  true.  If  the  deft,  evades  an 
answer,  the  plff.  may  either  except  and  make  him  answer  directly,  or 
he  may  go  to  issue  relying  on  other  evidence  to  prove  the  fact. 
If  a  party  has  a  right  to  relief  he  has  a  right  to  an  answer  from  the 
deft,  to  every  allegation  in  his  bill  the  admission  of  the  truth  of 
which  is  necessary  to  entitle  him  to  that  relief.  The  plff.  may  re- 
quire this  discovery  either  because  he  cannot  prove  the  facts,  or  in 
aid  of  proof,  or  to  avoid  expense,  &c.  2  Mad.  Chy.  337;  6  Vezey 
37-8;  2  Atk.  241.  If  therefore  the  answer  neither  admits  nor  de- 
nies, and  the  plff.  replies  and  goes  to  issue  without  excepting  to  it, 
he  dispenses  with  the  benefit  of  a  better  answer  and  relies  on  his 
proof.  For  after  replication  he  cannot  except  to  the  answer.  Coop. 
Eq.  328. 

The  cases  cited  from  6th  and  19th  Johnson's  Eeports  are  entirely 
consistent  with  this  view.  The  principle  of  those  cases  is  that  the 
court  will  not  hear  evidence  of  matters  not  set  out  in  the  bill  or  al- 
ledged  in  the  answer  by  way  of  defence.  The  court  cannot  afford  re- 
lief not  sought  for  by  the  bill;  nor  allow  a  defence  to  be  set  up  by 
the  evidence  which  is  not  stated  in  the  answer,  nor  raised  by  the  plea. 
The  case  must  be  tried  on  the  allegations  and  proofs;  the  decree  is 
upon  the  issues  made  up;  but  the  replication  cannot  put  in  issue  a 
matter  of  defence  not  relied  on  in  the  answer,  neither  can  the  answer 
raise  an  issiie  on  matter  not  contained  in  the  bill.  These  cases  are 
therefore  undoubtedly  right,  but  they  do  not  touch  the  question  in 
the  cause  whether  matters  alledged  in  the  bill  and  neither  admitted 
nor  denied  in  the  answer  are  put  in  issue  and  to  be  proved  by  the 
party  affirming  them. 

The  answer  of  Doct.  Couper  in  this  case  by  no  means  implies  an 
admission  of  the  fact  of  divorce,  and  it  is  as  full  as  he  could  have  been 
required  to  make.  Even  if  excepted  to,  it  must  have  been  deemed 
suflficient.  He  says  that  he  does  not  know  whether  the  bonds  of  mat- 
rimony were  dissolved  as  set  forth  in  the  bill,  and  insists  that  he  can- 
not answer  further  than  that  he  has  heard  that  an  act  of  assembly  was 
passed  in  relation  to  the  premises.  He  was  not  boiind  to  know  the 
contents  and  effect  of  that  act.  It  was  a  private  act  and  in  the  knowl- 
edge of  the  complainant.  The  answer  Avas  all  that  an  administrator 
could  be  supposed  to  know;  and,  as  he  swears  it  was  all  he  did  know, 
he  could  not  make  a  further  answer.  He  was  not  bound  positively  to 
den)''  a  fact  which  might  for  ought  he  knew  be  true,  nor  could  he  ad- 
mit it  consistently  with  his  duty,  as  its  truth  was  not  within  his 
knowledge.  The  deft,  bv  his  replication  takes  the  answer  as  it  is. 
To  the  extent  of  its  admissions  it  proves  his  case;  any  thing  beyond 
this  it  was  obligatory  on  hira  to  make  out  by  evidence.  This  answer 
certainly  does  not  adn)it  the  divorce;  and  the  complainant,  having 
given  no  evidence  of  it  below,  failed  in  an  important  part  of  his  case. 
It  is  not  denied  that  the  establishing  of  this  fact  was  essential  to  the 
complainant's  suit.     The  bill  showed  her  to  be  a  married  woman;  and 


204  Newlin  vs.  Duncan. 

unless  the  divorce  was  made  out,  she  was  not  entitled  to  maintain  her 
action. 

We  are  therefore  of  opinion  that  the  decree  of  the  Chancellor  dis- 
missing the  bill  was  right;  and  we  affirm  that  decree  with  costs/  " 

Decree  affirmed. 

Wales,  for  appellant. 

Read,  jr.,  for  appellee. 


THOMAS  S.  NEWLIJf,  surviving  partner  of  NEWLIN  &  WOOL- 
LASTON,  d.  b.  vs.  JOHN  DUNCAN,  p.  b. 

The  acknowledgment  of  a  debt  barred  by  limitation  revives  the  old  debt  and 
does  not  create  a  new  obligation. 

Payment  of  a  part  of  a  debt,  or  any  recognition  of  a  debt  existing  or  acknowl- 
edgment of  a  subsisting  demand,  is  evidence  of  a  promise  to  pay  it  and  pre- 
vents the  operation  of  the  act  of  limitations. 

The  principle  of  that  act  is  a  presumption  of  payment  which  a  slight  acknowl- 
edgment may  rebut. 

Questions  of  law  reserved  by  the  Superior  Court  in  Newcastle 
county  to  be  heard  in  the  Court  of  Errors  and  Appeals. 

|^"See  the  case,  ante  page  109. 

First.  Whether  entries  in  partnership  books,  as  set  forth  in  this 
case,  (page  110  ante)  made  by  a  deceased  partner,  are  acknowledg- 
ments of  a  subsisting  demand  under  the  hand  of  the  party,  within  the 
meaning  of  the  fifth  section  of  the  act  of  limitations  (Digest  397,) 
so  as  to  charge  a  surviving  partner  in  an  action  against  him  upon  a 
promissory  note  commenced  more  than  six  years  after  it  is  due,  and 
to  which  the  act  of  limitations  is  pleaded  in  bar. 

Second.  Whether  such  entries  being  made  more  than  three  years 
before  action  brought  will  prevent  the  operation  of  the  act  as  a  bar 
to  the  plff's.  recovery  when  pleaded. 

Bayard,  for  defendant  below. 

Action  brought  1st  May  1832,  on  a  promissory  note  dated  13th  Oc- 
tober 1823  payable  at  sixty  days,  to  wit,  15th  December  1823.  Pleas, 
non-assumpsit  and  the  act  of  limitations.  Verdict  for  plff.  On  the 
books  of  Newlin  &  Woollaston  were  the  following  entries :  July  3rd 
1826,  credit  by  $1D0,  and  interest  on  this  note;  7th  May  1827,  inter- 
est up  to  date,  and  31st  December  1827,  interest  to  date.  The  entry 
of  3rd  July  1826,  "was  in  the  handwriting  of  Woollaston,  one  of  the 
partners. 

The  first  question  is  whether  this  entry  comes  within  the  exception 
in  the  fifth  section  of  the  act  of  limitations,  as  "  an  acknowledgment 
under  the  hand  of  the  party  of  a  subsisting  demand." 

The  principle  of  the  act  of  limitations  is  the  interest  of  the  publjc 
that  there  should  be  an  end  to  litigation;  a  period  beyond  which  a 
man  should  not  be  called  to  answer  stale  demands.  The  time  for 
this  purpose  is  regulated  by  the  nature  of  the  security;  bills;  notes, 
acknowledgments  under  the  hand  of  the  party  of  a  subsistinsr  demand. 
Classed  thus  the  meaning  must  be  an  instrument  delivered  by  one  to 
another  under  his  signature  acknowledging  the  demand,  and  for  the 
express  purpose  of  evidencing  that  demand.      This  takes  it  out  of 


I 


Newlin  vs.  Duncan.  205 

the  reason  of  the  act,  for  there  is  no  need  of  protection  against  a 
claim  thus  admitted.  An  entry  by  a  man  on  his  books  is  not  an  ac- 
knowledgment of  this  kind,  it  is  within  all  the  mischief  which  the 
statute  was  designed  to  remedy,  it  is  not  signed  by  the  party,  nor 
made  for  the  purpose  of  evidence.  I  don't  contend  that  such  an  en- 
try may  not  operate  to  take  a  case  out  of  the  act  of  limitations;  but 
I  distinguish  it  from  the  kind  of  acknowledgment  intended  by  the 
act.  It  is  not  such  an  acknowledgment  of  a  debt  as  is  protected  by 
the  six  year  limitation.  It  is  evidence  of  a  payment  towards  the 
note  at  the  date  of  the  entry;  but,  not  being  an  acknowledgment 
under  the  hand  of  the  party,  it  is  merely  a  parol  admission  of  the 
debt  and  prevents  the  statute  from  running  not  for  six  years,  but  for 
three.  And  this  on  the  principle  that  wherever  a  promise  is  relied 
on  as  taking  a  case  out  of  the  act  of  limitations  that  promise  and  not 
the  original  cause  of  action  is  the  foundation  of  the  suit,  and  is  af- 
fected by  the  rules  of  limitation  applicable  to  it.  I  think  I  can  show 
this  by  analogy,  though  of  course  not  by  direct  authority  as  the 
question  could  not  arise  in  the  English  court,  the  six  year  limitation 
being  applicable  to  either  kind  of  admission.  The  acknowledgment 
is  a  new  promise  and  does  not  draw  down  the  old  promise.  The 
new  promise  is  the  substantive  cause  of  action.  The  plff.  ought  to 
have  been  compelled  to  declare  on  the  new  promise.  1  B.  (&  Aid. 
92;  1  B.  £  Cress.  248;  11  Com.  Law  Rep.  124;  13  do.  85,  273. 
These  decisions  by  the  unanimous  opinion  of  the  courts  in  England, 
overlooking  all  the  old  decisions,  establish  the  more  rational  doQ- 
trine  that  there  must  be  an  express  promise,  and  not  merely  an  ac- 
knowledgment, to  take  a  case  out  of  the  statute  and  that  the  promise 
and  not  the  original  cause  of  action  is  the  matter  to  be  relied  on.  If 
therefore  it  be  by  parol,  suit  must  be  brought  within  three  years, 
whatever  the  nature  of  the  original  cause  of  action.  An  acknowl- 
edgment does  not  revive  the  old  debt  but  is  evidence  of  a  new  pro-, 
mise  for  which  the  old  debt  is  a  sufficient  consideration.  11  Johns. 
Rep.  (146,)  161;  22  Com.  Law  Rep.  400,  401. 

The  entry  in  this  case  is  more  than  five  years  before  the  suit 
brought,  which  is  consequently  barred. 

Hamilton,  for  the  plaintiff  below  contended. 

That  the  payment  of  the  3rd  July  1826  of  $100,  on  account  of  the 
note,  the  same  being  made  by  way  of  a  credit  to  Duncan,  entered  in 
the  handwriting  of  one  of  the  partners  in  the  .books  of  the  firm,  pre- 
vented the  operation  of  the  act  of  limitations,  and  revived  the  orig- 
inal cause  of  action. 

This  note  is  dated  in  1823.  There  was  no  limitation  to  promis- 
sory notes  until  1829.  The  payments  on  account  of  the  note  are 
brought  up  to  1827.  The  note  then  never  was  barred.  We  don't 
go  for  a  debt  revived  by  a  new  promise.  The  cases  cited  might 
possibly  apply  to  an  action  on  the  new  promise,  but  our  action  is  on 
the  note,  to  which  the  act  has  never  applied  by  reason  of  these  ac- 
knowledgments. It  is  like  the  payment  on  a  bond  which  prevents 
it  being  barred  by  lapse  of  time.  It  is  an  acknowledgment  of  a  sub- 
sisting demand  by  note;  not  a  new  promise  to  revive  a  debt  already 
barred.  It  is  admitted  that  the  entry  or  promise  by  one  partner  will 
revive     a   debt  against  both.     Douglass   652;   2   H.   Blac.   340;    6 


206  Newlin  v8.  Duncan. 

Juhtis.  Hep.  268.  The  entry  in  tlie  party's  book  in  the  shape  of  an 
account,  is  equivalent  to  a  statement  made  for  the  other  party,  and 
is  equally  good  as  evidence  of  a  subsisting  debt.  Suppose  Woollas- 
ton  liad  written  a  letter  to  Duncan,  stating  that  the  firm  had  credited 
his  account  with  $100,  by  way  of  payment  towards  their  note,  would 
this  not  take  the  case  out  of  the  act?  And  is  not  the  entry  by  the 
party  himself  in  his  own  book  stronger  evidence? 

Mr.  Bayard  insists  that  our  suit  is  substantially  on  the  new  prom- 
ise, the  acknowledgment  of  3rd  July  1826.  This  we  deny.  It  is 
on  the  note,  the  old  cause  of  action  which  has  been  kept  in  full  vigor 
by  the  acknowledgment. 

The  acknowledgment  of  a  debt  barred  takes  the  ease  out  of  the 
act,  and  revives  the  original  cause  of  action.  A  recital  in  a  deed 
is  good  evidence  to  take  a  case  out  of  the  act  of  limitations.  8  C ranch 
72;  Cox's  Digest  465,  s.  48,  72,  74;  7  Cranch  168.  The  admis^ 
sion  therefore  of  a  debt  due  by  promissory  note  within  six  years  of 
action  brought  is  sufficient. 

Bayard,  in  reply. 

Don't  controvert  the  authorities  cited  on  the  other  side  except  a 
dictum  of  Judge  Marshall's  in  the  case  in  Cranch.  There  is  no  au- 
thority for  that  position  that  the  promise  revives  the  original  cause 
of  action.  The  answer  to  the  case  of  an  admission  of  a  debt  due  by 
bond  is  this.  The  twenty  year  bar  to  a  bond  is  on  a  presumption  of 
payment  which  any  admission  rebuts.  The  statute  of  limitations 
though  sometimes  incorrectly  placed  on  this  ground  proceeds  on  a 
different  principle,  that  of  safety  to  the  community  against  stale  de- 
mands depending  on  loose  evidence,  and  on  the  principle  of  sit  finis 
litium.  The  plff's.  action  is  certainly  brought  on  the  old  promise, 
the  note;  but  our  plea  of  the  statute  is  a  sufficient  answer  to  that, 
and  in  his  replication  he  sets  up  the  new  promise.  He  relies  then 
chiefly  on  the  latter;  and,  if  that  is  barred,  his  suit  fails.  And  on 
the  other  ground  the  entry  itself  is  not  such  an  acknowledgment  un- 
der the  hand  of  the  party  as  is  protected  by  the  six  year  limitation. 

Curia  advisare  vult. 

Chief  Justice  Clayton  delivered  the  opinion  of  the  court. 

Clayton,  C.  J. — "  This  action  was  commenced  on  the  1st  May 
1832,  on  a  promissory  note  dated  13th  October  1823,  for  $404.  On 
the  3rd  of  July,  1826,  the  deft's.  paid  in  part  satisfaction  of  this  note 
$100,  and  on  the  31st  December  1827,  the  interest  remaining  due 
upon  the  note  was  paid.  The  deft,  pleads  and  relies  on  the  statute 
of  limitations  as  a  bar  because  the  last  of  these  payments  was  made 
more  than  three  years  before  the  commencement  of  the  action;  that 
three  years  is  the  period  of  limitation  from  the  time  of  the  last  pay- 
ment and  not  six;  the  old  cause  of  action  (the  promissory  note,)  not 
being  revived  by  the  subsequent  acknowledgment,  the  plff.  should 
have  proceeded  on  the  new  promise,  the  old  cause  of  action  being 
the  consideration  only  of  the  new  promise. 

It  is  not  disputed  in  this  case  that  a  payment  of  a  part  of  the  debt 
is  evidence  of  a  promise  to  pay  the  remainder,  so  as  to  prevent  the 
operation  of  the  statute  as  a  bar.  Indeed  it  is  now  well  settled,  and 
has  been  for  more  than  one  hundred  years  past,  that  an  acknowledg- 


I 


:*■ 

Newlin  vs.  DuNCA5<r.  207 

ment  of  a  subsisting  demand,  or  any  recognition  of  an  existing 
debt,  is  evidence  of  a  promise  to  pay  it.  The  courts  in  England 
from  the  decision  in  Heyling  vs.  Hastings  in  1698,  to  the  case  of 
Acourt  vs.  Cross  in  18:^5,  have  maintained  tliat  the  ground  on 
which  the  statute  proceeds  is,  that  after  a  certain  time  it  shall  be 
presumed  that  a  debt  has  been  discliarged.  An  acknowledgment 
rebuts  that  presumption,  and  then  the  pllf.  recovers  not  on  the 
ground  of  having  a  new  right  of  action,  but  that  the  statute  does  not 
apply  to  bar  the  old  one.  This  is  the  language  of  the  judges  in 
Thornton  vs.  Illingsworth,  (3  Barn.  &  Cresiv.  224,)  decided  in 
the  year  1824.  So  in  the  case  of  Perhani  vs.  Raynall  and  others 
(2  Bing.  305.)  Chief  Justice  Best  says  'the  presumption  certainly 
is  that  the  debt  if  any  has  been  paid.  But  the  presumption  may  be 
rebutted,  and  is  rebutted  by  a  subsequent  acknowledgment.  From 
the  decision  of  Heyling  vs.  Hastings  (1698,)  down  to  the  present 
time  (1824,)  it  has  always  been  holden  that  a  new  promise  revives 
the  old  debt,  but  does  not  create  a  new  one.'  It  is  true  this  same 
judge  in  the  year  following  (1825,)  seems  to  have  changed  his  opini- 
on in  this  respect,  and  says  '  It  seems  to  me  that  the  plff.  should 
have  been  required  to  declare  specially  on  the  new  promise,  and 
ought  not  to  have  been  permitted  to  revive  his  original  cause  of  ac- 
tion. Acourt  vs.  Cross,  3  Bing.  329.  In  the  case  of  Tanner  vs. 
Smart,  6  Barn.  &  Cresw.  603,  decided  in  1827,  it  is  to  be  collect- 
ed from  the  whole  case  that  this  latter  opinion  of  Chief  Justice  Best 
is  not  recognized  to  be  law;  for  there  the  original  cause  of  action 
was  declared  on,  and  the  only  doubt  in  the  case  was  whether  the 
acknowledgment  was  such  a  one  as  amounted  to  a  promise  to  pay  the 
debt. 

In  addition  to  this  we  have  the  uniform  decisions  of  the  courts  of 
this  state  as  far  back  as  the  memory  of  the  oldest  lawyer  extends. 
They  have  considered  the  subsequent  acknowledgment  as  reviving 
the  old  debt,  and  not  creating  a  new  one.  They  have  in  effect  treat- 
ed it  as  many  of  the  English  decisions  do,  as  a  waiver  of  the  state. 
It  has  often  been  decided  here  as  well  as  in  England,  that  an  acknow- 
ledgment made  after  action  brought  prevented  the  bar,  and  this  evi- 
dence could  only  have  been  received  on  the  ground  that  the  old  debt 
was  revived;  the  new  promise  which  is  spoken  of  being  svibsequent  to 
the  commencement  of  the  action  could  not  sustain  it.  So  it  has  been 
decided  that  an  acknowledgment  by  parol,  is  sufficient  evidence  to 
revive  the  deft's.  liability  on  a  contract  reduced  to  writing  in  pur- 
suance of  the  statute  of  frauds;  the  court  saying  that  a  written  ac- 
knowledgment was  not  necessary  in  such  a  case,  because  the  deft's. 
liability  was  fixed  by  the  original  promise  in  writing,  and  the  ac- 
knowledgment within  six  years,  was  only  to  show  that  such  liability 
had  not  been  discharged.  1  Barn.  &  Aid.  690.  The  practice  of 
declaring  by  an  executor  upon  a  promise  to  him  as  such,  to  pay  the 
debt  of  the  testator  was  much  urged  at  the  bar.  In  that  case  no 
doubt  you  must  declare  on  the  new  promise,  for  every  promise  to  be 
binding  must  be  made  by  a  person  competent  to  make  it,  and  to  a 
person  in  existence  to  receive  it.  6  Taunt.  310;  13  Com.  Law 
Rep.  88.  Besides,  if  the  executor  were  to  declare  on  the  original 
promise  to  the  testator,  and  to  the  plea  of  the  statute  of  limitations 


208  Newlin  vs.  Duncan. 

were  to  reply  the  promise  made  to  himself,  it  would  be  a  manifest 
departure  in  pleading,  and  a  good  ground  for  a  demurrer.  But  who 
ever  saw,  as  between  the  original  parties,  a  declaration  on  the  new 
promise?  Has  such  a  case  occurred  either  in  England  or  in  this 
state  ?    We  are  not  aware  of  such  case. 

It  is  not  to  be  denied  that  the  later  decisions  in  England  on  the 
statute  of  limitations  have  left  the  law  in  a  confused  and  unsettled 
state.  Indeed  it  is  difficult  to  say  what  is  the  law  at  this  time  on 
the  subject.  It  is  certainly  not  settled,  and  seems  to  vary  according 
to  the  caprice  of  the  judge  who  tries  the  cause.  If  the  old  debt  is 
extinguished  and  you  must  proceed  on  the  new  promise,  what  is  the 
consideration  of  that  promise?  Certainly  there  is  no  legal  obligation 
to  pay  a  debt  extinguished  by  statute.  Chief  Justice  Best  who 
seems  to  have  taken  the  lead  on  this  subject,  in  Acourt  vs.  Cross, 
takes  occasion  to  say  that  it  is  unchristian  to  compel  a  man  to  pay  a 
debt  barred  by  the  statute,  and  he  repeats  the  observation  in  another 
case.  If  it  is  unchristian  to  compel  one  to  pay  such  a  debt,  there 
cannot  be  even  a  moral  obligation  to  pay  it.  And  yet  this  latter  is 
the  only  ground  on  which  the  consideration  for  the  new  promise  is 
attempted  to  be  supported  by  those  who  say  that  the  old  debt  is  not 
revived  by  the  subsequent  acknowledgment.  But  it  has  never  yet 
been  determined  that  a  mere  moral  obligation  is  a  sufficient  conside- 
ration to  raise  an  implied  promise.  1  Wheat.  Selw.  42.  In  such 
case  there  must  be  an  express  promise  to  be  binding  on  the  party. 
Such  is  the  case  of  one  who  contracts  a  debt  during  infancy  and  pro- 
mises after  his  arrival  at  full  age  to  pay  it.  So  in  the  case  of  bank- 
ruptcy and  insolvency.  In  such  cases  the  law  will  not  imply  a  pro- 
mise from  the  mere  acknowledgment  of  the  debt,  there  must  be  an 
express  promise  to  pay.  And  if  the  statute  of  limitations  extinguish- 
es the  debt,  and  the  subsequent  acknowledgment  does  not  revive  it, 
there  would  be  no  legal  consideration;  it  would  at  most  be  a  mere 
moral  obligation  from  which  the  law  would  not  imply  a  promise  to 
pay,  and  would  not  compel  one  to  pay  unless  he  had  expressly  pro- 
mised. No  one  doubts  that  the  naked  acknowledgment  of  a  subsis- 
ting demand  takes  the  case  out  of  the  statute.  This  has  never  been 
denied.  If  it  be  so,  and  no  express  promise  be  necessary,  you  are 
not  to  proceed  on  the  now  promise  but  upon  the  old  debt,  the  reme- 
dy which  was  suspended  being  restored  by  the  acknowledgment. 

Since  the  late  decisions  in  England  to  which  we  have  referred,  our 
statutes  of  limitation  have  all  been  revised,  and  none  of  the  new 
principles  attempted  to  be  established  by  those  decisions  are  intro- 
duced into  our  statute.  Taking  the  law  to  be  thus  that  the  acknowl- 
edgment of  a  subsisting  demand  revives  the  old  debt  and  does  not 
create  a  new  obligation,  it  follows  in  this  case,  where  the  demand  is 
on  a  promissory  note,  that  the  period  of  limitation  is  six  years  and  not 
three ;  therefore  that  the  plff.  is  not  barred. 

It  is  not  necessary  to  decide  the  other  question  presented  to  the 
court;  the  decision  of  this  question  being  conclusive  against  the  de- 
fendant.' " 

The  Court  directed  this  entry; 

And  now,  to  wit:  this  thirty-first  day  of  October  A.  D.  1833,  this 
cause  having  been  heard  at  the  last  term  of  this  court,  and  the  same 


Parkin's  aum'rx.  vs.  Bennington.  209 

having  been  debated  by  counsel  on  both  sides;  and  the  court  having 
held  the  same  under  consideration  until  this  time,  it  is  thereupon 
considered  and  adjudged  by  the  court  that  the  claim  of  the  said  John 
Duncan  the  plfp.  is  not  barred  by  the  act  of  limitations  aforesaid,  and 
that  the  entries  aforesaid  in  the  books  of  Newlin  and  Woollaston, 
being  all  made  more  than  three  and  within  six  years  before  the 
bringing  of  this  action,  had  the  effect  in  law  of  preventing  the  said 
act  of  assembly  from  being  a  bar  to  the  recovery  of  the  said  promis- 
sory note  declared  on  in  this  action.  And  it  is  further  considered 
and  adjudged  by  the  court  that  the  said  John  Duncan  the  plff.  ought 
to  recover  in  his  said  action;  and  it  is  further  considered,  adjudged 
and  ordered  by  the  court  that  the  record  be  remanded  to  the  court 
below,  and  that  the  said  Thomas  S.  Newlin  the  deft,  pay  the  costs 
in  this  court. 

J.  A.  Bayard,  for  defendant  below. 

Hamilton,  for  plaintiff  below. 


JOHN  PAEKINS'  ADM'EX.  vs.  JOHN  BENNINGTON. 

Construction  of  the  term  "  settlements  under  the  hands  of  the  parties  "  in  the 
old  act  of  limitations  of  1793. 

Under  the  act  of  1792  an  executor  or  administrator  being  prohibited  from 
paying  accounts  against  the  estate  of  his  testator  or  intestate  of  more  than 
three  years  standing,  it  was  held  that  he  could  not  by  his  promise  revive  a 
debt  thus  barred  by  limitation. 

But  if  the  debt  were  not  barred  by  limitation  at  the  decedent's  death,  a  prom- 
ise of  the  executor  or  administrator  would  pervent  the  act  from  runninor. 

Writ  of  error  to  the  Superior  Court  in  and  for  Newcastle  county. 

The  Court  of  Appeals  in  this  case  consisted  of  the  Chancellor  and 
Judges  BlacTc  and  Harrington. 

^^^  See  a  statement  of  the  case  ante  page  128. 

Mr.  J.  A.  Bayard,  for  appellant. 

First.  The  implied  promise  of  Mrs.  Parkin  the  administratrix, 
does  not  prevent  the  act  of  limitations  from  being  a  bar  to  the  plff's. 
claim.  The  distinct  admission  of  an  administrator  is  not  sufficient 
to  take  a  case  out  of  the  operation  of  the  act  according  to  the  late  de- 
cisions in  England,  but  it  requires  a  promise,  and  a  promise  of  all 
the  administrators.  It  was  admitted  below  that  from  a  necessary 
construction  of  the  fifth  section  of  the  act  of  1792,  (2  Del.  Laws 
1033,)  the  promise  of  an  administrator  would  not  revive  a  debt  barred 
by  limitation.  In  the  act  of  1829  the  provision  which  compelled 
this  construction  is  omitted,  and  the  question  here  is  which  law 
applies  to  this  case.  And  here  I  cannot  but  regret  the  omission. 
According  to  the  proper  relations  an  administrator  bears  to  the  estate 
of  his  intestate  he  ought  to  be  prevented  from  reviving  the  liabilities 
of  the  intestate.  Being,  as  he  frequently  is,  unconnected  with  the 
parties  entitled  to  the  estate,  unacquainted  with  the  facts  and  having 
no  interest  to  prevent  incautious  admissions  in  relation  to  debts  not 
justly  due,  the  policy  of  giving  him  the  power  to  do  so  is  doubtful. 
It  gives  him  too  the  power  of  a  partial  and  arbitrary  administration 


210  Parkin's  adm'rx.  vs.  Bennington. 

of  the  estate,  reviving  the  claim  of  one  and  declining  to  do  bo  for 
another,  without,  in  either  case,  such  personal  knowledge  of  facts  as 
can  enable  him  to  decide  correctly.  A  uniform  rule  of  conduct  for 
administrators  is  certainly  better  than  one  subject  to  their  own 
pleasure. 

Does  the  old  act  of  limitations  apply  to  this  case?  This  act  is  re- 
pealed by  that  of  1829,  but  the  repealing  clause  expressly  saves  any 
action,  cause  or  matter,  which  should  be  barred  before  September 
1829,  according  to  the  original  law.  No  promise  of  John  Parkin  is 
proved.  The  debt  was  barred  as  against  him  at  the  time  this  last 
act  passed.  It  was  barred  as  early  as  1823  or  4.  No  promise  of 
his  is  proved  after  the  passing  of  that  act,  for  he  was  then  dead.  And 
no  promise  by  the  administratrix  could  revive  it,  for  it  is  one  of  the 
cases  excepted  out  of  the  repealing  clause  of  the  act  of  1829,  and 
still  left  to  the  operation  of  the  old  law. 

But  if  the  latter  act  did  apply,  it  would  not  avail  in  this  case.  It 
requires  the  express  promise  of  an  administrator  to  remove  the  bar; 
and  a  promise  also  by  all  the  administrators.  The  courts  in  Eng- 
land, proceeding  on  notions  of  particular  equity,  have  by  judicial  leg- 
islation, almost  repealed  the  statutes  of  limitation;  they  are  now 
coming  back  to  a  more  rational  construction  by  requiring  an  express 
promise.  The  ground  of  limitation  is  the  peace  of  society.  Inter- 
est reipublicse  sit  finis  litium.  They  do  not  proceed  on  the  ground 
of  payment.  8  Com.  Law  Rep.  68.  The  promise  must  be  to  the 
party.  Mrs.  Parkin's  direction  to  the  English  executors  is  not  a 
promise  of  this  kind.  13  Com.  Law  Rep.  273.  Promise  to  pay 
when  able,  not  binding  until  able.  Here  they  cannot  rely  on  the 
promise  of  Mrs.  Parkin  to  pay  the  principal  alone,  as  a  promise  to 
pay  principal  and  interest.  It  was  conditional  and  not  binding  as  it 
was  not  accepted.  The  order  to  the  English  executors  if  it  could  be 
relied  on  as  the  promise  of  Mrs.  P.  would  not  be  binding  without 
the  assent  of  the  other  executors.  21  Com.  Law  Rep.  478.  Neither 
an  acknowledgment  by  all  the  executors,  nor  a  promise  by  one,  vtdll 
take  a  case  out  of  the  act  of  limitations. 

Mr.  Booth,  for  respondent: 

Eelies  on  the  promise  made  by  Mrs.  Parkin  before  the  referees. 
She  is  the  only  representative  of  the  estate  of  her  husband  in  the 
United  States,  and  the  only  person  who  could  be  sued  here.  There 
is  no  plea  of  plene  administravit;  it  is  therefore  admitted  there  are 
sufficient  assets  in  this  country  to  pay. 

Whether  the  act  of  '92  or  that  of  '29,  applies  to  this  case  the 
claim  is  not  barred.  It  is  supported  by  a  species  of  evidence  that 
takes  it  out  of  the  mischief  which  those  acts  were  intended  to  pro- 
vide against  and  out  of  the  acts  themselves.  The  act  of  '92  has  ref- 
erence to  actions  on  open  and  unsettled  accounts,  unascertained  and 
unacknowledged  liabilities.  And  therefore  the  supplement  of  1793 
excepts  from  its  operation  bills,  notes,  &c.,  and  settlements  under 
the  liands  of  the  parties.  This  is  not  an  open  and  unliquidated  ac- 
count. Here  is  the  written  acknowledgment  of  John  Parkin,  dated 
in  1820,  admitting  his  indebtedness  to  Bennington,  ascertaining  the 
amount,  and  ordering  payment. 


Parkin's  adm'kx.  vs.  Bexxingtox.  211 

The  acts  of  limitation  operate  on  the  remedy  and  not  on  the  cause 
of  action.  Their  object  is  to  prevent  the  suing  on  stale  demands 
when  papers  are  lost  or  witnesses  dead.  They  were  not  designed  to 
bar  claims  susceptible  of  clear  proof  from  the  parties  own  written 
acknowledgment.  According  to  the  other  side  the  new  promise 
does  not  draw  down  to  it  the  original  cause  of  action,  but  is  itself  a, 
new  cause  of  action  supported  by  the  original  liability  as  a  consid- 
eration for  the  new  promise.  In  this  view  the  act  of  '92  cannot  ap- 
23 ly  to  the  new  promise  in  this  case,  for  it  was  not  in  existence,  and 
under  the  act  of  '29  the  promise  of  Mrs.  Parkin  is  sufficient  to  re- 
vive the  debt.  And  the  repeated  acknowledgments  of  Mrs.  P.  would 
be  equally  effectual,  for  by  the  law  as  established  in  this  state  by 
repeated  decisions  a  clear  acknowledgment  of  a  debt  removes  the 
statutes  as  eifectually  as  a  promise. 

Then  as  to  the  promise  of  all  the  executors  being  necessary.  It 
might  be  if  all  were  sued.  In  the  case  cited  by  Mr.  Bayard,  all  the 
executors  were  sued  and  a  promise  of  but  one  proved.  The  plif. 
was  therefore  nonsuited.  It  would  be  singular  if  a  man  should  die 
here  leaving  property  here  and  in  England,  and  administration  taken 
out  in  both  countries  by  different  persons,  a  debt  cannot  be  collected 
here  until  the  promise  of  the  English  executor  was  obtained.  Mrs. 
Parkin  however  did  promise  here,  and  the  English  executors  assented 
to  that  promise  and  paid  a  part  of  the  debt  in  pursuance  of  it. 

Mr.  Bayard,  in  reply. 

The  same  principle  that  prevents  an  administrator  from  volun- 
tarily paying  a  debt  barred  by  limitation,  prevents  him  from  reviving 
such  debt  by  his  own  promise.  This  was  the  construction  of  the 
act  of  '92.  John  Parkin  died  in  1826.  This  action  was  barred  in 
1828.  It  is  agreed  that  no  promise  of  the  administrator  would  avail 
before  the'  act  of  '29,  the  repealing  clause  of  which  saves  from  its 
operation  such  claims  as  were  already  barred.  The  old  acts  as  to 
the  cases  to  which  they  apply  are  as  much  in  force  as  ever.  Did 
they  affect  this  case  in  September  '29?  If  so,  they  continue  a  bar  to 
this  day.  On  this  point  I  rely  for  a  reversal.  It  is  impossible  to 
construe  this  letter  of  Parkin  to  Lovel  of  October  1820,  a  settlement 
under  the  hands  of  the  parties,  such  as  is  excepted  by  the  act  of  '93 
out  of  the  operation  of  the  act  of  '92.  It  may  be  as  Mr.  Booth  sug- 
gested, such  an  acknowledgment  under  the  hand  of  the  party  of  a 
subsisting  demand  as  is  excepted  out  of  the  act  of  1829,  but  that  does 
not  affect  the  case,  for  whether  barred  or  not  by  the  act  of  '29,  it  is 
barred  by  the  old  act,  which  is  the  only  one  applicable  to  it. 

The  construction  now  to  be  put  on  the  act  of  1829,  in  relation  to 
the  effect  of  an  administrator's  promise  is  new,  and  it  is  a  proper  oc- 
casion for  the  court  to  consider  whether  the  old  or  the  later  English 
decisions  on  this  subject  are  founded  in  the  best  reason.  I  have  en- 
deavoured to  show  that  the  policy  of  permitting  an  administrator  to 
revive  debts  barred,  even  by  an  express  promise,  was  at  least  doubt- 
ful —  to  extend  it  to  the  admissions  of  an  administrator  would  be  far 
more  objectionable. 

Curia  advisare  vult. 


212  Parkin's  adm'rx.  is.  Benxinoton. 

Mr.  Justice  Black  delivered  the  opinion  of  the  court. 

Black,  J. — "  This  case  comes  before  the  court  on  a  writ  of  error 
to  the  Superior  Court  of  Newcastle  county,  to  which  is  annexed  the 
bill  of  exceptions  containing  the  evidence  in  the  cause. 

The  narr  contains  the  usual  money  counts  and  also  a  count  on  an 
account  stated  by  John  Parkin  in  his  lifetime.  There  is  also  a  count 
on  a  promise  by  the  administratrix  to  pay  the  money  lent  or  ad- 
vanced to,  or  received  by  the  testator,  and  a  count  on  an  account 
stated  between  the  plff.  below  and  Mary  Parkin  the  administratrix. 

It  appears  from  the  bill  of  exceptions,  that  Bennington  had  depos- 
ited in  the  Burlington  Bank  in  Yorkshire,  £400  sterling,  for  which 
he  received  a  check  or  certificate  of  deposit.  That  on  the  21st  A'pril 
1819,  the  day  before  he  sailed  for  the  TJ.  States,  he  handed  this 
check  to  John  Parkin  to  be  delivered  by  him  to  one  William  Rob- 
son,  to  be  kept  by  the  latter  until  Bennington  should  send  from 
America  for  the  money.  This  bank  paid  an  interest  on  the  deposits 
of  four  and  a  half  or  five  per  cent.  Parkin  did  not  deliver  the  check 
to  Eobson,  but  some  short  time  after  he  received  it,  drew  the  money 
out  of  the  bank:  Parkin  came  to  the  U.  States  in  September  1820; 
and,  on  the  3rd  of  October  1820,  on  being  called  on  by  Bennington, 
he  addressed  a  communication  to  Richard  Lovel  his  agent  in  Eng- 
land, which  he  handed  to  Bennington,  and  which  is  in  the  following 
words;  to  wit:  — 

"  Philadelphia,  October  3,  182D. 

Mr.  Richard  Lovell.  Dear  Sir,  The  bearer  hereof,  John  Ben- 
nington, will  wait  upon  you  (with  Christopher  Morris  of  Harpham, 
in  order  to  prevent  any  imposition,  being  personally  known  to  him) 
to  receive  from  you  the  money  or  securities  which  I  left  to  pay  him 
the  sum  of  £400,  as  by  the  account  sent  from  Liverpool,  by  my 
brother  Wm.  Parkin. 

(Signed)  JNO.  PARKIN." 
John  Parkin  died  in  April  1826.  In  May  1828  Mary  Parkin, 
who  had  administered  on  his  estate  in  the  state  of  Delaware,  directed 
the  executors  named  in  the  will,  who  resided  in  England,  to  pay 
Bennington  the  principal  sum  of  £400,  but  no  interest,  admitting 
that  that  sum  was  at  the  death  of  her  husband  John  Parkin  due  from 
him  to  Bennington,  and  further  instructed  these  executors  that  if 
they  were  short  of  funds,  she  would  pay  the  balance  in  America. 
In  October  1829,  the  executors  in  England  paid  to  Bennington  £100. 
In  May  1830,  Mary  Parkin,  the  administratrix,  admitted  that  £400 
was  due  from  her  husband  at  his  death  to  the  plff.  below,  and  agreed 
to  pay  £300  the  balance  of  principal  remaining  due  after  crediting 
the  payment  made  by  the  executors  in  England,  but  contested  the 
interest.     This  action  was  instituted  on  May  27,  1830. 

The  plaintiff  in  error  insists  that  this  claim  is  barred  by  the  act  of 
limitations  passed  on  the  4th  day  of  February,  1792.  (2  Del.  Laws 
1031. J  That  it  was  barred  by  that  act  in  April,  1826,  when  John 
Parkin  died,  and  that  being  so  barred  at  the  decease  of  Parkin,  no 
acknowledgment  or  promise  made  by  the  administratrix  afterwards 
can  take  the  case  out  of  that  act  or  revive  the  debt  or  cause  of  action 
so  as  to  render  the  estate  of  John  Parkin  liable  for  it. 


V 


Parkin's  adm'ux.  vs.  Bennington.  213 

Under  the  act  of  1792,  the  voluntary  payment  by  executors  or  ad- 
ministrators of  accounts  or  demands  against  the  estate  of  a  deceased 
person  of  any  longer  standing  than  three  years  next  before  the  death 
of  the  deceased  is  prohibited;  and  our  courts  have  held,  prior  to  the 
passage  of  the  act  of  1829,  and  as  we  think  correctly,  that  an  ac- 
knowledgment or  promise  by  an  administrator  or  executor  to  pay  an 
account  or  demand  thus  barred  would  not  revive  such  claim  so  as  to 
render  the  estate  of  the  deceased  liable  for  its  payment.  If  it  could 
be  thus  revived  the  executor  or  administrator  might  do  in  an  indirect 
mode  what  by  that  law  he  was  expressly  prohibited  from  doing.  If 
however  the  debt  was  not  barred  at  the  death  of  the  intestate  there  is 
nothing  in  the  act  of  1792  preventing  the  administrator  from  keep- 
ing the  cause  of  action  alive  or  the  act  of  limitations  from  affecting 
or  barring  it  by  his  promise  or  acknowledgment. 

The  important  question  in  this  cause  is  whether  the  cause  of  action 
on  which  the  present  suit  is  founded,  is  of  that  description,  or  of 
that  class  to  which  three  years  is  a  bar  by  the  act  of  1792,  and  there- 
fore barred  by  that  act. 

The  act  of  the  iBth  June  1793,  (Supplementary  to  the  act  of  1792 
2  Del.  Laws  1133)  declares — That  nothing  contained  in  the  act  of 
1792  shall  extend  to  any  demands  founded  on  mortgages,  bonds, 
bills,  promissory  notes  or  settlements  under  the  hands  of  the  par- 
ties concerned.  Bonds,  bills,  notes  and  settlements  under  the  hand 
of  the  parties  are  placed  on  the  same  footing  as  to  time;  exempted 
from  all  operation  of  the  act  of  1782;  and,  according  to  the  decisions 
of  the  courts  in  this  state,  were  not  affected  by  any  of  the  acts  of 
limitations  of  the  state  until  the  act  of  1829  was  passed. 

The  count  upon  the  account  stated  by  John  Parkin,  in  his  lifetime 
is  the  important  count  in  the  declaration.  Such  a  count  is  supported 
by  evidence  of  an  acknowledgment  on  the  part  of  the  deft,  of  money 
due  the  plff .  upon  an  account  between  them — or  by  a  promissory  note 
or  written  acknowledgment  of  indebtedness  by  the  defendant;  (2 
StarTcie  123 ;)  and  it  is  unnecessary  to  set  forth  in  the  narr,  or  to 
prove,  the  items  of  which  the  account  consists  or  is  the  subject  of 
the  original  debt.  (2  StarTcie  123;  1  Chitty's  PI.  344-5;  1  Term 
Rep.  42,  n.)  On  the  3rd  October,  1820,  John  Parkin  delivers  to 
Bennington  a  communication  to  Eichard  Lovell  in  which  he  states  — 
*'  Bennington  will  wait  on  you  to  receive  from  you  the  money  or  se- 
curities which  I  left  to  pay  him  the  sum  of  £400  as  by  the  account 
sent  from  Liverpool  by  my  brother  William  Parkin."  Whether 
the  account  referred  to  as  having  been  sent  by  his  brother  was  an 
account  of  the  "  money  or  securities  left "  or  an  account  between 
him  and  Bennington  is  not  clear,  nor  perhaps  is  it  very  material. 
Here  however  is  the  written  admission  and  acknowledgment  of  Par- 
kin, that  he  then  stood  indebted  to  the  plff.  below  in  the  sum  of 
£400 ;  that  he  had  made  provisions  for  its  payment  by  placing  funds, 
money  or  securities  in  Lovell's  hands  for  this  specific  purpose;  and 
that  an  account,  either  of  the  transactions  or  dealings  between  him 
and  Bennington,  or  of  the  funds  and  securities  deposited,  had  been 
forwarded  by  his  brother;  and  instructing  the  agent  with  whom  this 
deposit  had  been  made  that  Bennington  would  proceed  from  the 


214  Parkin's  adm'rx.  vs.  Bennington. 

United  States  to  England,  to  receive  from  him  the  money  or  securi- 
ties which  he,  Parkin,  had  left  in  his  hands  to  pay  him. 

Had  an  account  current  been  drawn  out  at  length  and  signed  by 
both  the  parties,  could  it  more  strongly  have  evidenced  a  debt,  or  had 
a  more  solemn  or  binding  character,  than  the  writing  on  which  this 
action  is  founded?  It  not  only  admits  the  debt  which  he  owes,  but 
specifies  the  provision  made  for  its  payment,  and  directs  the  payment 
according  to  the  provision  made.  Was  it  not  the  design  of  the  act 
of  1793,  to  exempt  from  the  operation  of  the  act  of  limitation  ot 
1792,  to  which  it  was  a  supplement,  those  claims  which  were  spe- 
cially adjusted  and  settled  by  the  parties,  and  which  were  sanctioned 
by  the  signature  of  the  party  indebted.  Here  the  party  who  is  to 
pay,  on  payment  being  demanded,  promises  to  give  a  check  for  it, 
and  signs  the  acknowledgment  of  his  indebtedness  and  provides  in  it 
the  means  of  payment,  places  this  written  evidence  of  the  debt  in  the 
hands  of  the  other  party  to  enable  him  to  receive  the  money  due  and 
as  evidencing  the  exact  amount  he  owes.  What  greater  solemnity 
or  obligation  could  attach  to  a  promissory  note,  or  to  an  account 
settled  under  the  hands  of  the  parties,  than  to  this  written  paper? 
Is  not  such  an  acknowledgment  of  indebtedness  at  least  within  the 
equity  of  the  act  of  1793? 

This  court  in  1832,  in  the  case  of  James  Booth's  executor  vs. 
John  Stockton's  executor  (ante  51, j  when  considering  a  question 
depending  on  this  same  act  of  1793  said  "  they  would  not  confine 
themselves  strictly  within  the  letter  of  the  statute,  but  that  any  case 
coming  clearly  within  its  spirit  might  be  recognized  as  not  barred"; 
and  they  laid  down  the  rule  "  that  any  engagement  which  of  itself 
would  be  the  foundation  of  an  action,  without  needing  proof  aliunde 
to  support  it  would  be  an  exception  to  the  operation  of  the  statute.'* 
We  consider  the  paper  signed  by  Parkin  and  handed  to  Benning- 
ton as  of  this  character,  and  within  the  principle  established  in  that 
case.  It  is  the  foundation  of  the  action;  no  proof  of  the  account, 
items,  or  matters  for  which  it  was  given  Avas  necessary;  under  the 
account  stated  it  was  evidence  of  a  specific  indebtedness;  we  there- 
fore consider  that  it  is  clearly  within  the  spirit  of  the  exception  of 
the  act  of  1793,  as  showing  a  settlement  between  the  parties  sanc- 
tioned by  the  signature  of  the  party  on  whom  the  obligation  of  pay- 
ment rests,  and  that  therefore  it  was  not  barred  by  the  act  of  1792. 
As  the  debt  was  not  barred  by  the  act  of  1792,  it  was  not  barred  at 
the  death  of  John  Parkin,  as  that  was  the  act  of  limitation  which 
was  in  force  at  his  death ;  and  as  it  was  not  then  barred  it  was  clearly 
competent  for  his  administratrix  by  her  promise  or  acknowledgment 
to  keep  the  claim  alive  and  free  from  the  operation  of  the  act.  In 
May  1828  she  directed  the  executors  in  England  to  pav  Bennington 
£400,  and  they,  conforming  to  this  order,  paid  £100,  the  amount  of 
funds  in  their  hands.  In  Mav  1830  she  admitted  her  husband  owed 
Bennington  £400  at  his  death.  At  the  time  when  these  acknowl- 
edgments were  made,  the  claim  of  the  plff.  was  not  barred,  as  it  was 
not  within  the  act  of  1792.    The  claim  is  not  barred  by  the  act  of 

1829,  for  this  suit  was  instituted  in  the  court  below  on  May  27th 

1830,  and  the  12th  section  of  that  act  declares  —  that  its  provisions 
shall  not  extend  to  any  acknowledginent  under  the  hand  of  the  party 


Pakkin's  adm'bx.  vs.  Bennington. 


315 


of  a  subsisting  demand,  if  an  action  be  brought  thereon  before  the 
first  day  of  September,  1830. 

We  are  therefore  unanimously  of  opinion  that  the  judgment  of  the 
court  below  be  affirmed/' 

J.  A.  Bayard,  for  appellant. 

Booth,  for  respondent. 


I 


SUPERIOR  COURT. 

FALL  SESSIONS. 
1833. 


THE  STATE  for  the  use  of  DANIEL  GODWIN  et  al.  V8.  JOHN 
COLLINS,  Sheriff,  et  al. 

Pleadings  are  amendable,  in  the  discretion  of  the  court,  ai  any  time  before 

judgment. 
The  distinction  between  pleadings  in  paper  and  of  record  not  applicable  to  our 

practice. 
The  object  of  pleadings  is  to  present  clearly  the  points  in  dispute,  and  to  give 

notice  of  what  is  to  be  tried,  so  that  justice  may  be  done. 
And  where  this  object  cannot  be   effected   without   altering  the  pleadings, 

amendments  are  at  all  times  allowable  in  the  discretion  of  the  court. 

Debt  on  Sheriff's  bond.  Narr.  Pleas.  Replications.  Demur- 
rers and  joinder. 

The  defendant's  counsel  moved  for  leave  to  amend  their  pleadings 
and  for"  a  continuance  of  the  cause,  which  after  full  argument  the 
court  granted  on  payment  of  costs.  (Note.  The  Chief  Justice  did 
not  sit.) 

Frame,  J.  M.  Clayton  and  Layton,  for  plaintiff. 
Cullen,  Rogers  and  Bayard,  for  defendant. 

Mr.  Justice  Black  delivered  the  following  opinion  of  the  court: 

"  At  the  last  term,  on  the  motion  of  the  plffs.,  the  pleadings  in 
this  case  were  withdrawn  and  an  order  made  that  pleadings  should 
be  filed  at  length.  In  the  vacation  pleas  at  length  were  filed,  to  the 
most  of  which  the  plffs  have  demurred,  and  the  defts  have  joined  in 
demurrer. 

The  defts.  finding  that  some  of  their  pleas  are  defective,  ask  leave 
generally  to  amend.  This  leave  is  resisted  by  the  plffs.  who  insist 
that  some  of  the  pleas  are  sham  and  dilatory,  put  in  for  the  object  of 
delay,  and  that  the  parties  shall  stand  or  fall  by  the  position  in  which 
these  pleadings  have  respectively  placed  them,  more  especially  as 
the  effect  of  granting  the  motion  will  be  to  delay  the  plffs.  one  term 
more  in  the  trial  of  their  cause. 

The  object  of  pleading  is  to  reduce  the  controversy  to  certain  and 
precise  issues  of  law  or  fact,  on  which,  as  containing  the  pretensions 
or  claims  of  the  parties,  the  opinion  of  the  court  or  jury  may  be 
taken,  and  a  decision  had  in  accordance  with  the  principles  of  justice. 

To  obtain  a  decision  according  to  the  justice  of  the  case  it  often 
happens  that  amendments  become  necessary.    The  granting  or  refus- 


I 


State  use  of  Godwin  vs.  Collins  et  al.  217 

ing  to  grant  the  application  rests  in  the  sound  discretion  of  the  court 
—  a  discretion  to  be  regulated  by  the  circumstances  of  the  case  and 
the  principles  of  law  settled  in  relation  to  like  points. 

There  is  much  difficulty  in  understanding  from  the  English  books 
when  the  pleadings  are  to  be  considered  as  oiit  of  paper;  but  it  ap- 
pears from  numerous  authorities  that  whatever  may  be  the  technical 
difference  between  proceedings  in  paper  and  proceedings  of  record, 
the  pleadings  were  amendable  at  common  law,  in  the  discretion  of 
the  court,  at  any  time  before  judgment.  1  Petersdorf  504;  1  Salk. 
47;  3  do.  31;  Co.  Lit.  260,  a;  Tidd  656;  Steph.  PI.  106.  No 
such  distinction  as  to  paper  and  record  pleadings  can  be  recognized 
in  this  statb.  We  hold  them  to  be  of  record  as  soon  as  filed;  are  we 
to  hold  then  that  our  pleadings  are  not  amendable  because  they  are 
of  record?  If  so,  no  narr,  plea  or  replication  can  be  amended  after 
it  is  filed  if  we  adopt  the  English  rule  because  from  that  moment  it 
is  a  record.  The  only  rule  therefore  by  which  we  can  be  governed 
is  that  furnished  by  our  constitution  of  allowing  amendments  before 
judgment  in  order  to  obtain  a  determination  of  causes  on  their  real 
merits. 

In  England  the  courts  have  in  modern  times  been  liberal  in  allow- 
ing amendments  to  get  rid  of  errors  and  mistakes  and  to  prevent  causes 
from  being  decided  apart  from  their  merits,  when  they  are  asked 
for  in  good  faith,  when  no  improper  delay  has  been  used,  and  when 
such  amendments  are  essential  to  obtain  a  just  decision  of  the  cause 
on  its  true  merits.  In  England  amendments  have  been  permitted  in 
a  great  variety  of  cases  after  the  issue  has  been  made  up  and  the  case 
ready  for  trial,  when  in  the  judgment  of  the  court  it  was  deemed 
necessary  to  effect  justice  between  the  parties  or  a  fair  trial.  So  too 
after  demurrer  and  joinder  in  demurrer.  And  in  some  cases  even 
after  argument  and  an  opinion  pronounced  the  party  has  been  allowed 
to  amend  where  the  court  deemed  such  leave  proper  under  the  pe- 
culiar circumstances  of  the  case.  In  some  cases  it  has  been  refused, 
the  court  saying  that  they  would  not  allow  a  party  to  amend  when  he 
was  so  hardy  as  to  stand  out,  go  to  the  argument,  and  wait  for  the 
opinion  of  the  court  before  he  made  his  request. 

In  general  the  leave  to  amend,  according  to  the  books,  is  almost  a 
matter  of  course  if  applied  for  before  trial  or  argument,  and  at  the 
earliest  period  at  which  it  could  be  made,  if  it  be  necessary  to  do 
justice  between  the  parties,  and  no  arts  practiced  for  delav.  1  Pe- 
tersdorf 504,  529,  533 ;  Steph.  Plead.  106 ;  2  Caines  139,  173,  369, 
375;  2  Johns.  209;  3  do.  44,  140,  243;  8  Term.  Rep.  300;  Tidd  656; 
1  Burr.  32.1;  Barnes  9;  Impey  297;  Sayers  Rep.  117;  2  Bos.  &  Pull. 
480;  3  do.  11,  12;  1  East.  491;  5  Taunt.  765;  7  Moore  244.  See  also 
Randel  vs.  The  Canal  Company,  ante  178. 

The  constitution  of  this  state  provides  that  this  court  "  shall  have 
the  power  before  judgment  of  directing  upon  such  terms  as  they 
shall  deem  reasonable  amendments  in  pleadings  and  legal  proceedings, 
so  that  by  error  in  any  of  them,  the  determination  of  causes  accord- 
ing to  their  real  merits  shall  not  he  hindered." 

Under  this  clause  of  our  constitution  the  courts  of  this  state,  ac- 
cording to  our  recollection  of  their  decisions,  have  adopted  a  liberal- 


tata 


218  State  use  of  Godwin  vs.  Collins  et  al. 

ity  in  amendments  similar  to  that  which  now  prevails  in  England, 
allowing  them  after  issue  joined  in  law  or  fact  before  argument  al- 
most as  a  matter  of  course  in  fair  cases  when  the  rights  of  the  ad- 
verse party  would  not  be  prejudiced;  and  in  one  case  in  this  county, 
in  the  late  Court  of  Common  Pleas,  of  Hujfington  vs.  Cannon,  per- 
mitting it,  from  the  peculiar  circumstances  of  the  case,  after  the 
opinion  was  delivered  on  the  demurrer. 

"We  think  this  liberality  regulated  by  a  sound  discretion  well  cal- 
culated to  attain,  in  the  language  of  the  constitution,  a  determination 
of  causes  according  to  their  real  merits.  Is  it  conducive  to  justice 
to  hold  a  party  who  is  free  from  suspicion  in  the  management  of  his 
cause,  and  who  has  not  used  arts  of  delay  and  who  may 'from  inad- 
vertence, hurr}%  error  in  copying,  or  by  putting  forward  as  a  matter 
of  defence  what  on  reflection  he  becomes  satisfied  will  not  avail  or  be 
tenable  in  law,  when  he  sees  his  mistake,  bound  to  abide  the  conse- 
quences of  that  mistake,  and  to  prevent  him  from  placing  his  cause 
on  its  true  points  and  procuring  its  determination  according  to  its 
real  merits?  We  think  not,  unless  the  rights  of  the  opposite  party 
be  prejudiced.  When  we  speak  of  rights  we  do  not  mean  legal  ad- 
vantages given  him  by  the  pleadings,  for  of  these  it  is  the  very  object 
of  the  amendment  to  get  rid,  and  procure  a  trial  on  thei  true  mer- 
its, but  of  those  rights  which  intrinsically  belong  to  his  case.  Lib- 
erality in  amendments  in  fair  cases  and  for  legitimate  objects  will, 
in  our  judgment,  best  subserve  the  great  and  important  object  of  all 
trials  —  justice  between  the  parties  to  the  suit. 

In  this  case  one  error  in  the  pleadings  of  the  deft,  is,  that  two  dis- 
tinct substantive  matters  of  defence  have  been  through  inadvertence 
placed  in  one  plea,  when  they  should  have  been  set  out  in  separate 
pleas.  Another  is,  that  through  inadvertence  and  hurry  they  have 
applied  their  pleas  or  some  of  them  to  what  in  the  plea  is  termed  a 
count,  when  it  should  have  said  a  breach. 

If  these  errors,  which  certainly  have  no  bearing  on  the  facts  or 
merits  of  the  cause,  be  not  corrected  the  case  must  be  decided  against 
the  defendants.  This  would  not  be  effecting  a  "  determina- 
tion of  the  cause  "  in  the  language  of  the  constitution  "  according  to 
its  real  merits,"  which  the  defendants  ask  to  get  at  by  being  allowed 
to  amend.  The  argument  of  the  plffs.  that  leave  to  amend  should 
not  be  allowed,  because  they  will  lose  a  trial,  cannot,  we  think,  avail, 
organized  as  the  terms  of  this  court  now  are;  the  second  term  is 
now  our  trial  term,  and  if  this  argument  is  to  have  the  effect  con- 
tended for  there  will  hie  but  few  cases  in  which  amendments  can  be 
allowed  by  the  court:  The  narr  is  not  filed  until  after  the  first  term; 
the  deft,  pleads,  and  the  plff.  demurs;  and,  at  the  second  term,  the 
cause  is  set  down  on  the  argument  list,  and  not  on  the  trial  list. 
The  deft,  cannot  therefore  at  the  term  procure  leave  to  withdraw  or 
amend  his  plea,  because  no  trial  before  a  jury  can  take  place  at  that 
term,  and  the  plff.' will  have  lost  a  trial.  So  too  if  the  deft,  demurs 
and  the  plff.  should  wish  to  amend.  This  rule  therefore  cannot  be 
admitted  with  the  present  arrangement  of  our  terms. 

Every  application  to  amend  is  addressed  to  the  sound  discretion 
of  the  court,  and  its  determination  is  to  rest  on  that  discretion.  If 
they  believe  a  party  is  by  his  course  of  pleading  trifling  with  the 


State  use  of  Godwix  vs.  Collins  et  al.  219 

court  by  pleading  sham  or  dilatory  pleas,  or  is  striving  by  his  pleas 
to  prevent  the  cause  being  brought  to  an  early  decision  on  its  true 
points,  the  sound  exercise  of  that  discretion  would  deny  to  the  party 
the  leave  to  amend.  If  on  the  other  hand  nothing  of  this  kind  ex- 
ists, and  the  amendment  be  necessary  to  a  just  decision  of  the  case, 
and  the  rights  of  the  opposite  party  be  not  prejudiced  by  granting 
the  leave,  the  court  would  grant  it  in  order  that  a  "  determination 
on  the  real  merits  should  not  be  hindered." 

The  court  can  see  nothing  in  this  cause  to  induce  a  belief  that  the 
pleadings  of  the  defts.  had  for  their  object  delay,  or  that  they  de- 
signed to  plead  what  they  did  not  believe  to  be  tenable.  Pleading 
specially  to  actions  on  the  recognizances  of  sheriffs  has  not  been 
usual  in  this  state;  we  have  no  knowledge  of  any  case  in  which  it  has 
been  done.  They  have  usually  been  tried  on  the  short  plea  of  per- 
formance—  ]>erhaps  "generally  and  specially''  added  to  the  plea; 
under  this  plea  the  matters  of  defence  have  been  given  in  evidence. 
Pleading  at  length  being  now  for  the  first  time  used  in  these  actions 
the  defts.  have  introduced  certain  pleas  which  they  contend  are  good 
pleas  to  the  action  while  on  the  other  hand  the  plffs.  deny  that  they 
can  be  used  or  sustained  in  this  action.  Whether  they  are  proper 
pleas  is  not  now  a  question  before  us  —  but  we  cannot  and  do  not 
suppose  that  they  have  been  pleaded  with  any  other  view  than  a  fair 
one,  to  obtain  the  opinion  of  the  court  as  to  their  sufficiency  in  a 
new  case. 

On  inspecting  the  record  we  cannot  see  any  thing  to  induce  us  to 
believe  that  efforts  have  been  used  by  the  defts.  to  prevent  the  plffs. 
from  obtaining  an  early  trial  of  their  action.  One  continuance  of 
this  cause  has  been  had  at  the  instance  of  the  defts.  and  the  plffs. 
have  procured  its  continuance  four  terms;  at  March  and  October 
terms  1831,  it  was  continued  on  the  affidavit  of  the  plffs.  At  April 
term  1832,  the  plffs.  obtained  leave  to  amend  their  narr  and  the 
amendments  were  not  filed  until  after  the  court  rose;  this  continu- 
ance we  presume  was  at  the  instance  of  the  plffs.  as  leave  to  amend 
was  obtained  although  it  is  not  so  stated;  at  the  last  term  it  was  con- 
tinued by  reason  of  the  absence  of  the  plffs.  witnesses;  at  October 
term  1832,  it  was  continued  at  the  instance  of  the  defts. —  the  only 
continuance  Avhich  it  appears  they  obtained.  The  record  therefore 
does  not  show  that  the  defts.  have  kept  off  the  trial  of  this  cause 
more  than  a  single  term. 

We  therefore  grant  the  defts.  leave  to  amend  their  pleadings  on 
the  payment  of  the  costs  of  the  term,  and  on  payment  also  of  any 
costs  that  have  accrued  for  office  copies  of  the  pleadings  filed  since 
the  last  term."     (a) 

(a)  1  Petersd.  504.  The  court  may  amend  at  common  law  in  all  jcases 
whilst  the  proceedings  are  in  paper,  that  is,  until  judgments  signed,  and 
during  the  term  In  which  it  is  signed. 

Amendments  are  in  the  discretion  of  the  court  for  the  furtherance  of 
justice;  and  it  is  no  groimd  for  refusing  an  amendment  that  an  advan- 
tage is  taken  from  one  party  which  he  before  possessed,  since  that  is  the 
case  in  every  amendment. 

When  are  the  pleadings  in  England  considered  as  out  of  paper?  Some 
of  the  books  speak  of  them  as  being  of  record  when  the  issue  is  made  up ; 


220  Morris  vs.  Cannon. 


MARGARET  MORRIS  late  HUDSON  vs.  WINGATE  CANNON. 

Replevin  will  not  lie  at  the  suit  of  a  master  to  recover  an  apprentice. 
It  aeema  that  replevin  will  not  lie  for  a  free  man. 

Replevin  for  a  negro  boy;  an  apprentice.  Pleas  non  cepit  and 
property  in  the  executor  of  William  Morris  the  late  husband  of  plff. 

Case  stated. 

"  The  negro  boy  in  the  declaration  mentioned  was,  on  the  2nd  of 
April  1830,  bound  as  an  apprentice  to  Margaret  Hudson,  her  heirs 

but  the  cases  are  numerous  of  amendments  at  common  law  after  issue 
joined  both  of  fact  and  law. 

Hardy  vs.  Gilding.  Pledges  inserted  in  narr  after  joinder  in  demurrer. 

Davie  vs.  Atkinson.  Narr  amended  after  joinder  in  demurrer  and  one 
argument. 

Brown  vs.  Crump.    New  counts  added  after  demurrer. 

Bishop  vs.  Stacey.  Amendment  allowed  after  8X)ecial  demurrer  and 
argument. 

Mace  vs.  Lovell.  Narr  amended  after  issue  joined  and  the  record  made 
up  ready  for  trial,  the  proceedings  being  in  paper  and  not  considered  as 
being  of  record  'till  verdict.    This  amendment  was  at  common  law. 

3  Salk.  31;  1  do.  47;  1  Petersd.  504.  Whilst  the  narr  is  in  paper, 
amendments  allowed;  but  when  it  comes  in  parchment  no  amendment 
allowed  except  by  statute,  "  for  'tis  then  a  record." 

Co.  Litt.  260,  a.  Record  is  a  memorial  in  rolls  of  parchment  of  the 
proceedings  and  acts  of  a  court  of  justice,  &c.  During  the  term  wherein 
any  judicial  act  is  done  the  record  remaineth  in  the  breast  of  the  judges 
of  the  court,  and  the  roll  is  alterable  during  the  term  as  the  judges  shall 
direct ;  but  after  the  term  is  past,  then  the  record  is  in  the  roll,  and  ad- 
mitteth  no  alteration. 

Steph.  PI.  106.  Until  the  judgment  is  signed  either  party  is  in  general 
at  liberty  to  amend  his  pleading  as  at  common  law. 

1  Tidd  Pr.  656.  It  is  now  settled  that  after  a  demurrer  or  joinder  in 
demurrer  either  party  is  at  liberty  to  amend,  as  a  matter  of  course, 
whilst  the  proceedings  are  in  pajjer. 

It  appears  from  these  and  numerous  other  authorities  that,  whatever 
may  be  the  technical  difference  between  proceedings  in  paper  and  of  rec- 
ord, the  pleadings  were  amendable  at  common  law,  in  the  discretion  of 
the  court,  at  any  time  before  judgment.  And  the  constitution  gives  to 
this  court  the  same  power  of  aUowing  amendments.    Sec.  16,  Art.  6. 

If  the  court  possess  the  power,  in  what  cases  shall  it  be  exercised? 
Is  it  to  be  confined  to  such  defects  as  are  bad  only  on  special  demurrer, 
or  is  it  to  be  extended  to  all  formal  defects  whatever,  whether  bad  on 
general  or  special  demurrer.  If  amendments  are  to  be  restricted  to  the 
former,  the  power  is  of  little  use ;  both  the  reason  for  its  exercise  and  the 
authority  of  adjudged  cases  extend  it  beyond  this  narrow  construction. 

The  object  of  amendments  is  the  attainment  of  justice ;  the  correction 
of  errors  and  mistakes  in  preparing  causes  for  trial  so  that  they  may  be 
determined  "  according  to  their  real  merits."  The  system  of  pleading 
though  excellent  in  itself  and  conducive  to  the  ends  of  justice,  is  obnox- 
ious to  the  objection  that  it  sometimes  places  the  decision  of  causes  upon 
points  apart  from  their  merits.  The  modern  practice  of  the  courts  in  al- 
lowing amendments  liberally  has  been  with  a  view  to  correct  this  tend- 
ency.   With  respect  to  defects  merely  formal,  and  such  as  would  be  bad 


I 


I 


Morris  vs.  Cannon.  221 

and  assigns;  at  the  time  and  before  the  binding  he  was  a  free  negro; 
Margaret  Hudson  afterwards,  became  the  wife  of  William  M.  Mor- 
ris, who  took  possession  of  the  said  negro  apprentice  and  held  him 
until  his  death.  After  his  death  his  executor  took  possession  of  the 
boy  and  hired  him  to  the  deft.  The  negro  boy  was  duly  inventoried 
and  appraised  in  the  estate  of  William  M.  Morris.  On  this  replevin 
the  sheriff  delivered  the  said  apprentice  to  the  plfE.  in  whose  posses- 
sion he  still  remains." 

Layton,  for  plaintiff. 

The  first  question  is  as  to  the  propriety  of  the  action  —  Will  re- 
plevin lie  for  a  free  boy?  Negroes  are  recognized  by  our  laws  as 
property,  and  there  can  be  no  difference  in  this  respect  between  a 
slave  and  a  servant  for  a  limited  period.  The  master  is  equally  en- 
titled to  the  services  of  either,  and  has  a  qualified  property  in  the 
servant.  The  services  of  the  apprentice  being  a  subject  of  property 
the  master  is  entitled  to  the  custody  of  the  apprentice  and  to  all  such 
remedies  as  are  needful  for  obtaining  or  keeping  the  possession  or 
custody  of  his  servant.  The  writ  of  replevin  is  the  proper  remedy 
wherever  property  is  wrongfully  detained.     Com.  Dig. 

Second.  Mrs.  Morris  as  the  survivor  of  her  husband  is  entitled  to 
the  unexpired  term  of  this  boy.  Dig.  37.  He  was  bound  to  her  be- 
fore her  marriage  with  Morris,  during  that  marriage  her  rights  and 
liabilities  under  the  indenture  of  course  devolved  on  the  husband, 
but  at  his  death  she  again  became  liable  to  the  performance  of  her 
covenant  to  the  boy  and  entitled  to  his  services.  There  was  no  ac- 
tual assignment  of  the  indenture  to  the  husband;  it  is  therefore  like 
a  debt  due  to  the  wife  dum  sola,  not  collected  during  marriage,  and 
which  survives  to  the  widow.  In  relation  to  the  unexpired  time  of 
the  boy,  Morris  never  obtained  a  legal  right  to  it  in  possession  as  he 
might  by  taking  a  transfer  of  the  indenture  and  thus  placing  himself 
in  the  character  of  an  assignee.  The  binding  was  to  Margaret  Hud- 
son, her  heirs  and  assigns  —  not  to  executors  or  administrators  —  the 
boy  therefore  is  not  transmissible  to  the  executor  of  the  husband  nor 
is  such  executor  bound  by  any  of  the  stipulations  in  the  indenture. 
Dig.  42.  A  different  construction  violates  the  contract  of  the  parties 
which  was  for  service  to  be  rendered  to  Mrs.  Hudson,  her  heirs  and 
assigns,  and  not  to  the  executor  of  her  husband,  nor  even  to  her  own 
executor  or  administrator,  unless  the  administrator  is  named  he  can- 
not take  as  a  legal  assignee  —  the  word  assigns  means  actual  assignee. 

only  on  special  demurrer,  amendments  are  allowed  of  course ;  and  for  de- 
fects in  substance,  or  such  as  would  be  fatal  on  general  demurrer  a  dis- 
tinction is  well  taken  where  such  defects  are  inherent  in  the  case  itself 
and  where  they  arise  only  from  the  manner  of  statement.  In  the  latter 
case  they  may  be  amended  though  bad  on  general  demurrer.  Steph.  P. 
503,  5.  If  the  pleading  be  insufficient  in  form  the  pleader  is  to  consider 
whether  it  is  worth  while  to  take  the  objection,  recollecting  the  indul- 
gence which  the  law  allows  in  the  way  of  amendment.  On  the  other  hand, 
supposing  an  insufficiency  in  substance,  he  is  to  consider  whether  that 
insufficiency  be  in  the  case  itself  or  in  the  manner  of  statement,  for  on 
the  latter  supposition  it  might  be  removed  by  an  amendment,  and  it  may 
be  therefore  not  worth  while  to  demur.    Idem  182-3. 

From  these  authorities  it  is  obvious  that  the  power  of  allowing  amend- 
ments is  not  confined  to  such  defects  only  as  are  bad  on  special  demurrer. 


222  Morris  vs.  Caxxon. 

And  if  Mrs.  Hvulson's  administrator  would  not  be  entitled  under 
this  indenture,  much  less  will  the  executor  of  her  husband  who  never 
placed  himself  in  the  character  of  an  actual  assignee. 

Cullen,  for  defendant. 

Beplevin  will  not  lie  for  a  free  man;  it  lies  only  for  goods  and 
chattels,  for  articles  which  may  be  the  subject  of  property.  All  the 
right  the  master  possesses  even  to  the  services  of  the  apprentice  is 
derived  from  the  act  of  assemljly,  and  that  act  gives  a  specific  rem- 
edy for  the  violation  of  that  right,  for  depriving  him  of  those  ser- 
vices by  inticing  away  or  harboring  his  servant.  Dig.  41,  sec.  16. 
There  is  also  a  common  law  remedy  for  harboring  an  apprentice. 
If  there  was  nothing  in  the  thing  itself  inconsistent  with  the  idea  of 
property  the  specific  remedy  for  the  violation  of  the  master's  right 
to  the  services  of  his  apprentice  would  distinguish  it  from  other 
kinds  of  property  and  exclude  the  remedy  by  action  of  replevin. 

Second.  Who  is  entitled  to  the  services  of  this  boy  on  the 
death  of  his  master?  He  must  go  either  to  the  executor  of  that  mas- 
ter or  he  is  free.  On  the  marriage  of  Mrs.  Hudson  all  her  right  to 
the  boy  and  interest  under  the  indenture  passed  to  William  M.  Mor- 
ris, her  husband;  passed  by  operation  of  law.  She  had  no  control 
over  him  or  the  indenture  —  she  could  not  have  assigned  them  even 
to  her  husband,  for  her  separate  character  was  merged  in  his.  No 
act  of  his  could  give  him  a  more  perfect  right  to  the  boy  than  he  ac- 
quired by  th^  marriage  and  the  actual  possession  of  the  boy  which 
he  had.  It  is  not  therefore  like  a  chose  in  action  not  reduced  to  pos- 
session during  the  husband's  life. 

Layton,  in  reply — 

Contended  that  the  remedy  under  the  act  of  assembly  for  enticing 
away  or  harboring  an  apprentice  was  not  exclusive,  but  only  cumu- 
lative. It  refers  not  to  a  disputed  claim  to  the  property  in  the  ap- 
prentice, but  to  acts  of  wanton  violation  of  the  admitted  rights  of 
the  master. 

The  8th  section  of  the  act  of  assembly,  (Dig.  38,^  expressly  rec- 
ognizes the  master's  right  to  the  services  of  the  apprentice,  and  to 
the  "  custody  and  keeping  of  the  apprentice,"  and  to  "  take  and  hold 
him  or  her,"  &c.  Having  the  power  to  tal-e  and  hold  and  keep  the 
servant  for  the  purpose  of  obtaining  the  benefit  of  his  services  to 
which  the  act  acknowledges  his  right,  the  mode  of  executing  this 
power  is  not  by  brute  force  but  by  those  ordinary  remedies  of  the 
law  provided  for  the  recovery  of  property  to  which  a  man  is  enti- 
tled— and  by  which  through  the  peaceful  instrumentality  of  legal  pro- 
cess he  takes  his  property  from  another  who  has  illegally  deprived 
him  of  it.  The  remedy  furnished  by  the  act  of  assembly  is  not  ade- 
quate for  this  purpose  —  it  gives  him  compensation  in  damages  for 
enticing  away  or  harboring  his  apprentice,  but  it  does  not  restore 
that  apprentice  to  his  custody. 

Judgment  of  non  suit,  on  the  first  ground  taken  by  deft*s. 
counsel ;  the  court  intimating  an  opinion  that  the  plff .  was  neverthe- 
less entitled  to  the  unexpired  time  of  the  apprentice. 

Layton,  for  plaintiff.     Cullen,  for  defendant. 


I 


Waples'  Lessee  vs.  Harman,  223 


LESSEE  of  BURTOX  WAPLES  vs.  EPHRAIM  HARMAN,  tenant. 

Devise  to  A.  "  to  be  holden  of  him,  his  heirs  and  assigns  forever.  But  in  case 
A.  should  decease  witliout  lawful  issue,  then  the  lands  givmi  unto  him  shall 
go  and  descend  unto  B.  him  and  his  heirs  lawfully  begotten  of  his  body 
forever  " —  gives  A.  but  an  estate  tail. 

Ejectment.     Case  stated. 

"  Burton  Waples  being  seized  of  the  lands,  &c.  in  the  declaration 
mentioned,  on  the  16th  of  August,  A.  D.  1796,  duly  made  and  pub- 
lished his  last  will  and  testament  in  writing,  attested  signed-,  as  by 
law  is  required  to  pass  real  estate  in  the  state  of  Delaware.  The 
testator  by  his  said  will  devised  the  said  lands,  &c.  to  Woolsey  Wa- 
ples by  the  following  words — "  I  give  and  bequeath  unto  my  grandson 
Woolsey  Waples,  the  remainder  of  the  tract  of  land  whereon  I  now 
dwell  called  '  Batchelor's  lot,'  being  the  eastmost  part  of  the  tract 
which  I  bought  of  my  brother  Peter  Waples,  afsd.  adjoining  the  In- 
dian river;  also  ten  acres  of  land  which  I  bought  of  Catharine  God- 
win, adjoining  the  land  afsd.;  and  also  seventy-five  acres  of  land 
which  I  bought  of  Stockley  W^aples,  and  being  part  of  the  land  called 
'  Batchelors  lot,'  and  part  of  the  land  called  '  Cheat,'  with  the  ap- 
purtenances thereunto  belonging,  and  to  be  holden  of  him,  his  heirs 
and  assigns  forever.  But  in  case  my  grandson,  Woolsey  Waples 
should  decease  without  lawful  issue,  then  the  lands  given  unto  him 
shall  go  and  descend  unto  my  grandson  Wallace  Waples,  him  and  his 
aeirs  lawfully  begotten  of  his  body  forever."  The  said  AYallace 
Waples  to  whom  the  said  lands  are  limited  and  devised  over  in  the 
ovent  of  the  death  of  the  said  Woolsey  without  issue,  was  a  near 
^elation  of,  and  capable  of  being  collateral  heir  to,  the  said  Woolsey. 
The  said  Woolsey  and  W^allace  survived  the  said  testator.  The  said 
Woolsey  was  lawfully  married  to  a  certain  Xancy  Waples,  who  has 
survived  him,  and  by  whom  he  had  issue  five  children,  of  whom 
':he  plff.,  the  said  Burton  W^aples  is  the  first  and  eldest  son,  and  who 
has  brought  this  ejectment  to  recover  the  possession  of  the  lands, 
&c.,  devised  to  the  said  W^oolsey  as  afsd.  The  deft.  Ephraim  Har- 
man  is  in  possession  as  the  tenant  of  the  said  Nancy  Waples.  The 
olff.  claims  all  the  lands  devised  as  afsd.  to  Woolsey  Waples, -except 
such  part  thereof  as  has  been  assigned  to  the  said  Nancy  for  dower. 

The  question  was  whether  Woolsey  Waples  took  a  fee  simple  or 
an  estate  tail  under  the  will  of  his  grandfather.  The  court  were  of 
opinion  that  the  said  will  passed  but  an  estate  tail;  and  directed  judg- 
ment to  be  entered  for  the  plff.  for  such  part  of  the  land  devised  as 
was  not  included  in  the  wido'^^'s  dower.  16  Johns.  Eep.  382.  An- 
derson vs.  Jackson. 

Cullen,  for  plaintiff.     Lay  ton,  for  defendant. 


224  WooDLiN  &  Blackiston  i»*.  Hynsons. 

HANNAH  KINGGOLD  vs.  JACOB  R.  GRIFFIN. 

If  a  trial  be  granted  after  judgment  entered  on  a  judgment  note  it  vacates 

that  judgment,  unless  there  has  been  u  levy. 
And  in  such  case  there  is  no  appeal  from  a  subsequent  judgment  under  five 

dollars  and  thirty-three  cents. 

Appeal  from  the  judgment  of  a  justice  of  the  peace. 

A  judgment  had  been  entered  by  the  justice  at  the  suit  of  Ring- 
gold vs.  Griffin  on  a  judgment  note.  The  deft,  made  affidavit  as 
required  by  the  act  of  assembly  (Dig.  337,  sec.  12 j  and  the  jus- 
tice appointed  referees  to  try  the  cause,  who  reported;  and  the  jus- 
tice afterwards  set  aside  and  vacated  their  report  and  gave  judg- 
ment against  the  defendant  for  four  dollars  and  sixteen  cents,  costs; 
from  which  an  appeal  was  taken. 

Frame,  of  counsel  for  Griffin,  moved  to  dismiss  the  appeal  on  the 
ground  that  the  judgment  was  for  a  sum  under  five  dollars  and  thir- 
ty-three cents,  and  that  no  appeal  lay  from  the  original  judgment. 

Per  curiam;  In  this  case  there  being  no  execution,  no  lien,  and 
a  trial  ordered  by  the  justice,  it  is  as  if  an  original  action  had  been 
brought  on  the  note  without  entering  judgment  under  the  power  of 
attorney,  the  opening  of  the  judgment  in  such  case  doing  no  harm 
to  any  one.  But  if  there  had  been  an  execution  levied  the  vacating 
the  judgment  would  necessarily  have  destroyed  the  execution  and 
with  it  the  lien  of  the  party;  therefore  the  act  provides  in  such  case 
that  the  judgment  and  execution  shall  stand  unless  the  deft,  gives 
security. 

By  ordering  a  trial  in  this  case  the  judgment  entered  on  the  war- 
rant of  attorney  was  vacated;  and  the  proceedings  were  to  be  had  as 
if  an  action  had  been  regularly  commenced  on  the  obligation;  con- 
sequently the  only  judgment  now  remaining  of  record  on  the  record 
of  the  justice  is  the  judgment  for  four  dollars  and  sixteen  cents,  the 
amount  of  the  costs  which  being  under  five  dollars  and  thirty-three 
cents  is  final  and  no  appeal  lies  therefrom.     (Dig.  342,  sec.  22.^ 

^Appeal  dismissed. 


PETER  WOODLIN  and  EBEN.  BLACKISTON  vs.  MARTHA 
HYNSON  and  WILLIAM  HYNSON. 

After  depositions  are  published  and  read  further  testimony  cannot  be  taken. 
If  the  competency  of  a  deposing  witness  is  to  be  attacked,  exceptions  should  be 
filed  to  notify  the  other  side. 

Petition  for  freedom. 

In  this  case  the  court  said  in  relation  to  the  taking  of  depositions ; 

That  after  depositions  had  been  returned  and  published  and  read  by 
the  opposite  party  or  his  counsel,  it  was  not  competent  for  such  party 
to  file  interrogatories  and  take  further  testimony.  He  must  file  his 
interrogatories  before  publication  of  the  depositions  on  the  other 
side;  or  if  published,  before  reading  them;  otherwise  the  testimony 
will  be  rejected. 


Bank  or  Wil.  &  Brandywine  vs.  Houston.  225 


If  the  competency  of  a  witness  is  to  be  attacked  it  must  be  done 
by  filing  exceptions,  that  the  other  party  may  have  notice  and  pre- 
pare to  support  his  witness. 


ISAAC  DAVIS  vs.  JOHN  DENNING,  THOMAS  DUHADAWAY, 
and  JOHN  M.  DENNING. 

If  referees  report  against  a  person  not  regularly  a  party  in  the  cause  the  report 
as  to  him  is  a  nullity  and  no  judgment  can  be  rendered  upon  it;  but  it  will 
not  vitiate  the  report  as  to  other  parties. 

Certiorari  to  justice. 

Thomas  Duhadaway  and  John  M.  Denning  had  been  duly  sum- 
moned by  the  constable  and  non  est  inventus  returned  as  to  John 
Denning.  J.  M.  Denning  and  Duhadaway  appeared  and  claimed  a 
trial  by  freeholders  who  were  appointed.  John  Denning  did  not  ap- 
pear. The  referees  reported  no  cause  of  action  against  Duhadaway 
and  J.  M.  Denning  and  that  $35  29  was  due  from  John  Denning  to 
plff.  whereupon  the  justice  gave  judgment  against  Davis  for  costs. 

Per  curiam. —  In  this  case  Duhadaway  and  J,  M.  Denning  were 
the  only  parties  before  the  justice.  They  submitted  the  matters  in 
controversy  to  referees,  who  decided  that  they  were  not  indebted 
to  the  plff.,  and  on  this  part  of  their  award  the  justice  properly  gave 
judgment  against  Davis  for  costs.  They  further  reported  that  John 
Denning  was  indebted  to  the  plff.  in  the  sum  of  $35  29.  They 
might  with  equal  propriety  have  reported  that  any  other  person  not 
a  party  to  the  record  was  so  indebted.  John  Denning  was  not  be- 
fore them  and  they  had  no  authority  to  pass  upon  his  rights.  The 
award  therefore  against  John  Denning  being  against  a  person  not 
a  party  to  the  record  is  a  nullity  and  void ;  the  justice  could  not  have 
given  any  judgment  against  him  upon  that  award;  and  therefore  the 
judgment  against  Davis  for  costs  was  a  proper  judgment  and  the  pro- 
ceedings below  must  be  affirmed  with  costs. 

Judgment  affirmed. 


THE  PRESIDENT, DIRECTORS  AND  CO. of  the  BANK  OF  WIL- 
MINGTON AND  BRANDYWINE  vs.  GEORGE  HOUSTON. 

To  charge  a  party  as  indorser  there  must  be  an  indorsement  either  in  person 
or  by  procuration. 

A  collateral  agreement  to  be  bound  as  indorser  does  not  make  the  party  an 
indorser.  The  liability  is  on  the  agreement,  but  a  count  upon  it  may  be 
joined  in  an  action  on  the  note. 

To  recover  on  the  money  counts  the  plff.  must,  show  that  money  has  been  actu- 
ally received  by  defendant  to  his  use. 

Case.  Pleas  non  assumpsit;  payment;  discount  and  the  act  of 
limitations. 

The  plffs.  declared  against  Houston  as  the  indorser  of  three  sev- 
eral  promissory   notes   dated  the   8th   of  March,    1832,   drawn   by 


226  Bank  of  Wil.  &  Brandywine  vs.  Houston. 

Joseph  Roberts  in  favor  of  Margaret  Booth,  Peter  B.  Dulany  and 
Evan  H.  Thomas  respectively,  and  amounting  together  to  $1400, 
and  indorsed  by  these  persons  respectively,  to  the  plfiE.  Similar 
notes  had  been  drawn  by  Roberts  in  favor  of  the  same  persons  for 
the  same  amounts  dated  30  June,  .which  had  been  indorsed  by  the 
payees  and  also  by  this  deft.  These  were  renewed  on  the  8th 
March,  by  the  notes  declared  on  in  this  action,  which  were  indorsed 
as  afsd.  by  the  payees  respectively,  but  not  actually  indorsed  by 
Houston,  except  through  the  medium  of  the  following  agreement, 
which  was  offered  in  evidence  with  the  notes  to  charge  him  as  an 
indorser. 

"Prom'y  notes  — 

Jos.  Roberts  to  Margaret  Booth  for  $600;  dated  30  June,  '31,  at 
60  days. 
Same  to  Peter  B.  Dulany  for  600;  " 

Same  to  E.   H.   Thomas   for  400;  " 

To  Jos.  P.  WooUaston,  cashier  of  the  Bank  of  W.  &  Brandywine: 

"  Sir,  As  I  live  at  a  distance  from  the  bank,  and  being  an  indorser 
on  the  above  mentioned  notes  in  your  bank,  I  wish  to  inform  the 
board  of  directors  through  you,  that  in  case  it  should  be  found  con- 
venient or  expedient  to  renew  said  notes  for  the  whole  sum  or  any 
part  thereof,  I  would  not  wish  the  drawer  to  be  put  to  the  trouble  of 
finding  another  indorser,  but  the  directors  aforesaid  may  hereby  con- 
sider me  as  bound  in  any  or  every  renewal  of  said  notes  for  the 
whole  amount  or  any  part  thereof  whenever  the  same  may  fall  due 
as  much  so  as  if  I  were  personally  present,  and  my  sign  manual  in- 
dorsed on  the  said  notes,  it  being  understood  that  the  several  in- 
dorsers,  to  wit:  ^largaret  Booth,  Peter  B.  Dulany  and  Evan  H. 
Thomas  are  also  to  renew  their  indorsements  on  the  several  notes. 
Dated  July  18th,  1831. 

(Signed)         GEO.  HOUSTON. 

Witness,  J.  Wales." 

Under  this  agreement  the  notes  were  several  times  renewed,  the 
last  renewal  being  on  the  8th  March,  1832,  when  the  notes  were 
given,  on  which  the  present  suit  is  founded.  The  declaration  was 
against  Houston  as  an  indorser  and  not  on  the  guarantee. 

Plaintiff  offered  the  notes  in  evidence  —  Objected  to. 

Booth,  for  defendant. 

This  action  is  founded  on  three  notes  drawn  by  Roberts  and  in- 
dorsed to  the  bank  by  Margaret  Booth,  Peter  B.  Dulany  and  Evan 
H.  Thomas.  The  declaration  is  in  the  usual  form  setting  out  the 
indorsement,  and  also  an  indorsement  by  Geo.  Houston.  The  notes 
offered  in  evidence  do  not  sustain  this  declaration;  on  none  of  thera 
does  the  name  of  George  Houston  appear,  ^ut  it  is  alledged  that 
Houston  by  a  certain  agreement  made  himself  liable  as  an  indorser. 
He  may  be  liable  on  that  agreement  to  the  same  extent  as  if  he  had 
indorsed  the  notes,  but  he  cannot  be  made  liable  in  the  character  of 
an  indorser.  He  cannot  be  sued  on  the  notes.  He  is  no  party  to 
them.  Whatever  may  be  his  liability  on  the  separate  agreement  he 
is  clearly  not  liable  as  an  indorser.  To  make  a  man  liable  on  a  bill 
or  note  he  must  become  a  party  to  it:  his  name  must  appear  on  it 
either  by  his  own  signature  or  that  of  an  authorized  agent  subscrib- 


Bank  of  Wil.  &  Brandywixe  vs.  Houston.  227 

ing  for  him.  Chitty  on  hills  30;  2  Campb.  308;  15  East.  7,  10; 
Chitty  on  Bills  115,  6;  1  Camph.  442. 

Houston  here  is  not  an  indorser,  either  by  himself  or  any  author- 
ized agent.  The  agreement  does  not  authorize  another  to  indorse 
for  him;  and  even  if  it  did,  the. general  indorsement  declared  on 
would  not  be  supported  by  evidence  of  such  special  indorsement.  If 
the  indorsement  be  by  procuration  it  must  be  so  declared  on.  12 
Com.  Law  Rep.  223-4. 

If  there  be  no  indorsement  then,  the  variance  between  the  narr 
and  the  evidence  offered  is  obvious.  No  authorities  need  be  cited 
on  that  subject. 

Read,  jr.  on  the  same  side. 

There  can  be  no  doubt  on  this  subject  since  the  decision  of  this 
court  in  Erwin  &  Lamhorn.  (ante  125. j  In  that  case  the  court 
distinguished  between  the  characters  of  indorser  and  guarantor,  by 
reasoning  applicable  also  to  this  case. 

Where  the  right  of  action  is  given  by  statute,  as  this  is,  every 
thing  must  be  conformable  to  the  statute  or  the  action  will  not  lie. 
This  action  is  founded  on  the  notes.  The  liability  according  to  this 
suit  is  by  reason  of  Houston's  indorsement  of  certain  notes  which 
when  produced  have  no  such  indorsement  on  them.  They  then  set 
up  a  separate  agreement  by  Houston,  that  he  will  be  considered  as 
an  indorser.  What  is  the  effect  of  this?  Suppose  it  broken  —  an  ac- 
tion lies  upon  it,  not  upon  the  notes.  The  plff.  might  have  joined  a 
count  on  the  agreement  with  the  other  counts  in  this  narr  as  they  all 
sound  in  damages.  The  most  that  can  be  said  of  this  letter  is  that  it 
is  an  agreement  to  indorse,  but  it  is  not  an  indorsement;  and  any 
action  against  this  deft,  must  be  founded  on  the  special  agreement. 

J.  A.  Bayard,  for  plaintiffs. 

It  is  not  denied  that  this  agreement  relates  to  the  notes  in  ques- 
tion, nor  that  they  were  discounted  on  the  faith  of  the  agreement. 
That  the  design  and  intention  of  that  agreement  was  to  place  Hous- 
ton precisely  in  the  relation  of  an  indorser  to  these  notes  is  equally 
clear.  The  arrangement  was  made  to  accommodate  the  drawer  and 
the  deft,  to  save  him  the  trouble  of  an  actual  indorsement  at  every 
renewal  of  the  notes.  The  question  then  arises  whether  a  person 
designing  to  charge  himself  as  an  indorser  can  do  so  without  an  in- 
dorsement actually  made  by  himself  or  by  another  regularly  author- 
ized by  him  to  indorse. 

We  contend  also  that  this  agreement  does  authorize  the  bank  to 
indorse  these  notes  for  Houston,  and  that  such  indorsement  can  be 
made  at  any  time,  even  at  the  trial.  We  treat  it  as  an  indorsement 
by  procuration,  and  insist  that  the  cashier  of  the  bank  has  now  the 
right  to  put  Houston's  name  on  the  back  of  these  notes  by  virtue  of 
his  agreement.  It  does  not  require  a  letter  of  attorney  to  authorize 
such  an  indorsement;  any  agreement  showing  that  the  deft,  in- 
tended the  plff.  should  place  him  in  the  condition  of  an  indorser  au- 
thorizes him  to  use  the  deft's  name  for  that  purpose.  And  the  actual 
indorsement  being  but  a  matter  of  form  to  comply  with  the  usages  of 
mercantile  transactions  may,  in  the  execution  of  the  agreement,  be 
made  at  any  time,  even  at  the  trial.     As  in  the  case  of  a  blank  in- 


J828  Bank  of  Wil.  &  Brandywine  vs.  Houston. 

dorsement  the  party  has  right  to  write  over  it,  at  any  time,  any- 
thing consistent  with  the  nature  of  the  agreement," 

We  do  not,  therefore,  contend  that  a  man  can  be  made  a  party  to 
a  bill  without  his  name  appearing  on  the  bill ;  but  that  if  a  party  has 
by  his  own  agreement  placed  himself  in  the  condition  of  an  indorser 
he  gives  authority  to  the  pltf.  to  supply  the  matter  of  form  by  actu- 
ally indorsing  his  name.  The  authority  for  this  purpose  is  irrevoca- 
ble after  the  note  is  negotiated  on  the  faith  of  it. 

I  admit  that  where  the  indorsement  is  laid  to  have  been  made  by 
the  deft.  "  his  own  handwriting  being  thereunto  subscribed "  you 
cannot  prove  an  indorsement  by  procuration,  for  the  narr  is  descrip- 
tive of  the  mode  of  indorsement;  but  where  the  plff.  charges  the 
deft,  generally  as  an  indorser  without  making  it  matter  of  descrip- 
tion, he  may  prove  an  indorsement  by  procuration.  Chitty's  Plead- 
ing is  to  that  effect.  You  need  not  state  an  indorsement  by  procura- 
tion, but  if  you  do  you  must  prove  it.  If  the  indorsement  be  stated 
generally  it  will  be  supported  by  proof  of  an  indorsement  by  an 
agent,  for  qui  facit  p^r  alivm  facit  per  se.  The  narr  in  this  case 
does  not  confine  us  to  the  proof  of  an  indorsement  by  Houston  in 
person. 

Have  we  then  by  the  agreement  ,the  authority  we  contend  for  to 
indorse  these  notes  for  Houston?  This  is  an  equitable  action ;  relating 
to  parol  matter;  not  under  seal  and  subject  to  liberal  construction  in 
reference  to  the  intention  of  the  parties,  the  facilities  of  trade,  &c. 

Wales  on  the  same  side,  cites  Cliiity  187;  Strange  648;  3  Burr.. 
1674;  15  Johns.  6;  Story  Am.  Prac.  59;  11  Mass.  Rep.  436. 

In  this  case  the  agreement  and  notes  are  all  one  transaction  accom- 
panying each  other,  and  the  agreement  is  a  part  of  the  notes.  It  is 
therefore  in  legal  effect  an  indorsment  and  we  have  declared  on  the 
whole  transaction  according  to  its  legal  effect. 

The  Court  stopt  the  other  side. 

Clayton,  C.  J. — This  action  is  against  Houston  as  an  indorser,. 
and  the  notes  offered  in  evidence  do  not  themselves  show  any  con- 
nection or  liability  of  the  deft.  It  appears  by  other  evidence  that 
three  notes  were  drawn  by  Jos.  Eoberts  in  favor  of  certain  persons 
and  indorsed  by  them,  and  also  by  Houston  to  the  bank.  Houston 
afterwards  made  an  agreement  with  the  bank  in  relation  to  the  re- 
newal of  these  notes.  This  is  an  undertaking  to  indorse,  or  an 
agreement  to  hold  himself  responsible  as  an  indorser;  in  either  case 
he  is  liable,  but  liable  on  the  agreement.  The  action  should  have 
been  on  this  agreement  specially  setting  it  out;  it  might  have  been 
done  in  this  case  by  adding  a  count  to  that  effect.  It  has  been  con- 
tended that  this  was  an  authority  given  to  the  bank  to  indorse  these 
notes  for  the  deft.  We  admit  that  this  authority  may  be  made  out 
by  inference  —  by  the  course  of  trade,  as  where  a  wife  was  accus- 
tomed to  indorse  for  her  husband  — but  here  is  a  written  agreement 
and  we  cannot  go  beyond  it.  It  gives  no  such  authority.  The  party 
agrees  to  be  bound  as  much  as  if  he  had  indorsed  the  note?,  but  he 
does  not  indorse  them  nor  authorize  another  to  indorse  for  him.  He 
is  not  then  an  indorser  though  liable  as  much  as  an  indorser;  but  how 
liable?  Is'ot  on  the  notes,  for  this  would  make  him  an  actml  in- 
dorser, but  on  the  agreement.    A  distinction  is  taken  in  the  books  be* 


Bank  of  Wil.  &  Brandywine  vs.  Houston.  229 

tween  the  acceptance  of  a  bill  drawn  and  one  to  be  drawn;  in  the 
former  case  it  may  be  by  collateral  writing,  but  in  the  latter,  not. 
Here,  this  agreement  is  in  relation  to  notes  to  be  drawn  in  future: 
and  the  case  is  stronger  than  that  of  an  acceptor,  for  the  indorser 
is  quasi  a  new  drawer.  We  are  therefore  of  opinion  that  the  evi- 
dence offered  is  inadmissible  in  this  action. 

The  plffs.  then  proved  the  notes  of  the  30th  June  1831,  and  the 
indorsement  by  Houston  of  those  notes.  That  these  notes  were  run- 
ning when  the  agreement  aforesaid  was  made,  that  the  notes  in 
question  were  discounted  on  the  faith  of  that  agreement  and  were 
but  renewals  of  the  old  notes.  That  the  old  notes  were  cancelled, 
but  they  were  not  paid  otherwise  than  by  the  new  notes.  They  also 
gave  in  evidence  the  official  bond  of  Jos.  Roberts  as  prothonotary  of 
the  late  oourt  of  Common  Pleas;  certain  proceedings  showing  that 
money  to  which  the  plff.  was  entitled  was  paid  into  court,  and  for 
which  Eoberts  was  responsible;  and  they  further  proved  that  Hous- 
ton was  the  surety  of  Roberts  in  his  official  bond,  and  that  these 
notes  were  discounted  to  enable  him  to  pay  this  money  to  plffs.  for 
which  he  was  then  responsible  as  prothonotary. 

The  plff.  now  offered  all  the  notes  and  the  agreement  as  evidence 
under  the  money  counts.     Objected  to. 

Rogers. — In  order  to  support  an  action  for  money  had  and  re- 
ceived, the  plff.  now  resorts  to  the  original  notes  of  June  1831, 
which  have  been  paid  off  and  discharged.  When  a  note  is  declared 
on  and  also  money  counts  added,  the  only  way  the  money  counts 
can  be  sustained  is  by  the  production  of  the  notes.  You  may  some- 
times be  unable  to  prove  all  the  requisites  to  charge  an  indorser  as 
Buch,  and  may  yet  recover  on  the  money  counts,  but  it  can  only  be 
by  giving  the  notes  in  evidence  and  connecting  them  with  a  consid- 
eration. The  notes  of  March  1833,  have  no  bearing  upon  Hous- 
ton: he  is  not  a  party  to  them;  they  are  not  evidence  in  this  cause, 
and  the  original  notes  have  been  paid.  They  bear  the  bank's  stamp 
of  discharge. 

Bayard. — In  the  money  counts  we  are  not  bound  by  the  special 
contract.  If  we  can  show  value  received,  money  advanced,  or  con- 
sideration existing  between  the  parties  we  can  recover.  We  here 
show  a  consideration.  The  liability  of  Houston  as  surety  for  Rob- 
erts in  his  official  bond.  Money  paid  into  court  and  ordered  to  be 
paid  to  plffs.  The  notes  discounted  on  account  of  this  liability.  The 
money  was  advanced  then  for  the  benefit  of  Houston  the  surety  as 
well  as  for  Roberts,  and  by  his  consent  and  agreement. 

"  The  Court  thought  the  evidence  not  sufficient  for  the  plffs.  to 
recover  under  tbe  money  counts.  Houston  was  the  surety,  together 
with  Price,  of  Roberts  in  his  official  bond.  Any  liability  which  He 
had  incurred  on  that  bond  was  divided  by  Price.  His  condition 
was  in  no  wise  bettered,  but  rendered  worse  by  the  discountinsj  of 
these  notes.  No  consideration  of  advantage  therefore  passed  to  him. 
To  hold  him  liable  on  the  money  counts  would  be  to  dispense  w^ith 
the  provision  that  was  made  in  his  agreement  that  Margaret  Booth, 
P.  B.  Dulany  and  E.  H.  Thomas,  should  also  indorse,  which  be 
made  a  condition  precedent.  He  is  liable  on  his  agreement  and  not 
otherwise." 


230  State  use  of  Herdman  vs.  Houston. 

It  is  now  settled  that  the  plff.  can  in  no  case  recover  under  the 
count  for  money  had  and  received  unless  money  has  actually  been 
received,  and  for  the  use  of  the  plff.  1  East  434;  1  Camp.  175; 
Chitty  366. 

If  the  drawer  has  been  discharged  from  liability  upon  the  bill  by 
the  laches  of  the  holder,  the  latter  cannot  recover  on  a  count  for 
money  had  and  received.     Chitty  364. 

The  plaintiffs  suffered  a  nonsuit. 

Bayard  and  Wales,  for  plaintiff. 

Booth,  Bead,  jun.  and  Bogers,  for  defendant. 


The   State  for  the  use  of  WILLIAM  HERDMAN  vs.   GEORGE 

HOUSTON. 

Nul  tiel  record  is  not  a  good  plea  in  an  action  on  the  official  bond  of  the  pro- 
thonotary  or  other  public  officer,  though  such  bond  is  directed  to  be  recorded. 

Quere:  Whether  non  est  factum  can  be  pleaded  to  a  public  bond  without  affi- 
davit denying  the  execution? 

8o  much  only  of  an  instrument  need  be  set  out  as  entitles  the  plaintiff  to  his 
action;  but  he  must  set  it  out  truly. 

Debt  on  bond. 

This  was  an  action  on  the  official  bond  of  the  prothonotary  of  the 
late  court  of  Common  Pleas  for  Newcastle  county.  The  declaration 
set  out  that  a  certain  Joseph  Roberts  being  the  prothonotary,  &c., 

executed,  together  with  the  said  George  Houston  and  a  certain 

Price,  his  sureties,  a  joint  and  several  bond  to  the  state  of  Delaware 
in  the  penalty  of  $3,000:  conditioned  in  substance  that  the  said 
Joseph  Roberts  should  well  and  diligently  execute  his  office  of  protho- 
notary aforesaid,  and  duly  and  faithfully  fulfil  and  perform  all  the 
trusts  and  duties  to  the  said  office  appertaining;  and  then  alledged  a 
breach  that  a  large  sum  of  money  to  wit:  the  sum  of  $1,711,  had 
been  paid  into  court  and  delivered  to  the  said  prothonotary,  under 
the  rules  and  orders  of  the  said  court;  and  that  the  said  court  did 
on,  &c.,  order  and  direct  the  said  prothonotary  to  pay  the  said  sum 
to  the  plff.  which  he  neglected  to  do,  &c.  &c. 

The  defendant  pleaded  First.  The  act  of  limitations.  Second. 
That  the  said  sum  of  $1,711,  was  not  paid  into  court  and  delivered 
to  the  said  J.  Roberts,  prothonotary,  &c..  oocordinff  to  the  rules  and 
orders  of  the  said  court  as  set  forth,  &c.  Third.  That  the  said  J.  R. 
did  well  and  diligently  execute  his  office,  &c.  Fourth.  Nul  tiel 
il^cord. 

Bayard  moved  to  strike  out  the  plea  of  nul  tiel  record  as  inappli- 
cable to  the  action. 

Bogers,  for  defendant. 

The  suit  is  on  the  official  bond  of  the  prothonotarv  of  the  late 
court  of  Common  Pleas,  which  bond  is  by  law  directed  to  be  re- 
corded. It  is  therefore  a  record  and  the  plea  of  nul  tiel  record  is 
applicable  and  proper. 

Bayard. — The  direction  to  record  the  bond  is  an  incident  to  its 
validity  and  is  a  fa?t  to  be  tried  by  the  jurv.    A  mortgage  is  by  law 


State  use  of  Herdman  vs.  Houston.  231 

required  to  be  recorded,  yet  this  court  in  Gilpin's  case  decided  that 
nul  tiel  record  could  not  he  pleaded  to  it.  If  you  would  deny  the 
bond  or  mortgage,  you  must  plead  non  est  factum. 

The  court  directed  the  plea  of  nul  tipl  record  to  be  stricken  out. 

Rogers  then  moved  for  leave  to  amend  by  putting  in  the  plea  of 
non  est  factum,  which  was  objected  to  unless  the  deft,  would  file  an 
affidavit  denying  the  execution  of  the  bond. 

A  majority  of  the  court  allowed  the  plea  to  be  put  in  with  leave 
to  the  plff.  to  amend  his  narr  if  he  thought  fit,  on  the  ground  that 
the  deft,  had  been  deprived  of  a  defence  which  he  expected  to  avail 
himself  of  on  his  plea  of  nul  tiel  record.  The  Chief  Justice  thought 
that  as  this  was  a  public  bond,  a  party  to  it  should  not  be  permitted 
to  plead  non  est  factum  without  an  affidavit  denying  its  execution. 

The  plaintiff  declined  amending  his  narr. 

Bond  offered  in  evidence.     Objected  to  for  variance. 

Read,  jr. —  There  are  many  and  material  variances  between  the 
bond  declared  on  and  that  now  offered  in  evidence.  The  latter 
clause  of  the  .condition  that  the  prothonotary  shall  truly  and  without 
delay  deliver  over  to  his  successor  the^  books,  records,  papers,  &c., 
is  entirely  omitted  from  the  narr.  Where  the  action  is  on  a  written 
instrument  the  whole  of  it  must  be  set  out.  If  a  material  part  be 
omitted  it  is  fatal.  This  bond  is  under  a  statute  and  must  therefore 
follow  the  statute  strictly.  Digest  456.  Eefers  to  Randel  vs.  Wright 
on  the  subject  of  variance,  ante  34. 

The  Court  stopt  Mr.  Bayard. 

The  plff.  has  declared  on  this  bond  according  to  its  legal  effect, 
and  does  not  profess  to  set  it  out  according  to  its  tenor.  He  has  set 
it  out  substantially.  A  party  need  not  set  out  the  whole  of  a  con- 
tract, but  only  so  much  as  he  founds  his  action  upon,  and  if  that  part 
be  set  out  substantially  when  he  professes  to  do  no  more,  it  is  suffi- 
cient. If  there  be  any  thing  omitted  which  controls,  or  qualifies  or 
restrains  the  part  declared  on  it  will  be  fatal,  for  then  the  substance 
and  legal  effect  of  the  contract  will  not  have  been  expressed.  The 
objection  here  is,  not  that  the  plff.  has  not  truly  set  forth  that  part  of 
the  bond  on  which  he  alledges  a  breach,  nor  that  the  same  is  in  any 
degree  restrained  or  affected  by  the  part  omitted,  but  that  he  has 
omitted  to  state  a  further  obligation  of  the  deft,  that  the  officer  for 
whom  he  was  surety,  should  deliver  over  to  his  successor  the  books 
and  papers  of  his  office.  With  this  part  of  the  bond  the  plff.  in  this 
action  has  nothing  to  do.  He  has  set  out  truly  so  much  of  the  bond 
as  entitles  him  to  his  present  action,  and  that  is  sufficient,  where  a 
party  undertakes  to  set  out  an  instrument  by  its  tenor — in  haec  verba 
—  it  becomes  descriptive  of  the  instrument  itself,  and  any  omission 
or  a  slight  discrepancy,  destroys  the  identity  of  the  instruments 
pleaded  and  proved 

The  plff.  then  made  out  his  case  by  proof  of  the  bond,  the  pay- 
ment of  money  into  court,  and  an  order  of  court  dated  11th  Decem- 
ber 1832,  on  the  prothonotary,  to  pay  the  sum  of  $1,128  91  to  the 
plff.  Herdman. 

Read,  jr. —  Eemarks  on  the  plea  of  the  act  of  limitation.  Digest 
397.     }yo  action  shall  be  brought  upon  the  official  obligation  of  any 


232  Bailey  vs.  Seal. 

prothonotary,  &c.,  after  the  expiration  of  three  years  from  the  accru- 
ing of  the  cause  of  such  action.  When  did  this  cause  of  action  arise? 
The  money  was  brought  into  court  on  the  16th  December  1828, 
more  than  three  years  before  the  bringing  of  this  suit. 

The  Court  decided  that  the  cause  of  action  in  this  case  did  not  ac- 
crue until  the  money  was  directed  to  be  paid  out  to  the  plff.  on  the 
nth  December  1832. 

Verdict  for  plaintiff  for  $1,194  34. 

J.  A.  Bayard,  for  plaintiff. 

Read,  jr.  and  Rogers,  for  defendant. 


JOHN  BAILEY  vs.  JOSHUA  T.  SEAL. 

It  seems  that  a  promise  by  indorser  with  knowledge  of  the  facts  is  a  waiver 

of  notice  and  also  of  the  demand  on  drawer. 
ISeven  per  cent  interest  allowed  here  on  a  note  drawn  in  New  York. 

Case.     Pleas,  non-assumpsit,  payment  and  set  off. 
•    The  action  was  on  a  promissory  note  for  $409  04,  dated   11th 
November  1829,  at  ninety  days,  and  drawn  in  New- York  by,  J.  B. 

Norris  in  favor  of indorsed  by  the  deft.     The  plff. 

proved  the  indorsement  of  deft,  and  gave  in  evidence  a  letter  from 
deft,  to  plff.  dated  13th  February  1830,  the  day  after  the  note  be- 
came due,  expressing  his  regret  that  the  drawer  had  not  paid  it,  and 
inclosing  a  new  note  for  the  amount  of  the  old  one  with  interest  and 
charges  of  protest,  &c.  He  also  produced  two  other  letters  from 
the  deft,  dated  22nd  February  and  4th  March  1830,  both  containing 
promises  to  pay  the  note :  and  he  here  rested  his  case. 

Bayard,  for  deft,  moved  a  nonsuit. 

In  an  action  against  the  indorser  a  demand  on  the  drawer  and  no- 
tice to  the  indorser  must  be  proved.  A  waiver  of  the  notice  .by  the 
indorser  will  not  excuse  the  want  of  demand  on  the  drawer.  With- 
out such  demand  his  promise  to  pay  is  a  nullity ;  it  is  without  consid- 
eration because  without  liability.  The  obligation  of  the  indorser 
is  wholly  on  the  note;  and  according  to  mercantile  usage  it  is,  that 
he  will  pay  the  note  if  a  demand  be  made  on  the  maker  on  the  last 
day  of  grace,  and  on  failure  of  payment  that  notice  be  given  to  him. 
He  may  waive  this  notice  as  he  has  done  in  this  case,  but  that  does 
not  obviate  the  necessity  of  a  demand. 

Hamilton,  for  plaintiff. 

The  letters  in  evidence  not  only  dispense  with  the  note  but  prove 
the  demand.  The  day  after  the  note  became  due  the  indorser  wrote 
that  he  was  sorry  Norris  had  not  pay  it  and  himself  promises  pay- 
ment. He  also  incloses  a  new  note  in  the  way  of  payment  which 
includes  interest  and  protest.  This  admits  the  demand,  for  without 
it  there  would  have  been  no  protest.  The  laches  of  the  holder  re- 
leases the  indorser,  but  he  may  waive  that  release  by  a  promise,  &c. 
Ch  it fy  on  Bills  301,3,  n. 

Bayard. —  The  authority  cited  relates  only  to  a  waiver  6t  notice ; 


Eandel,  Jun.  vs.  Cues.  &  Del.  Caxal  Company.  233 

such  waiver  does  not  supply  a  demand.  (Sed  vide  2  Stark.  2?3; 
Chitty  on  Bills  303 ;  2  Camph.,  &c.) 

The  plff.  had  a  verdict  subject  to  the  opinion  of  court:  and  judg- 
ment was  afterwards  rendered  for  him  by  consent,  and  a  rule  granted 
on  the  application  of  Seal's  special  bail  to  show  cause  why  an  exone- 
retur  should  not  be  entered  on  the  bail  piece.    Yide,  post  367. 

Hamilton,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 


JOHN  EANDEL,  jun'r.  vs.  The  PRESIDENT,  DIRECTORS  and 
COMPANY  of  the  CHESAPEAKE  and  DELAWARE  CANAL. 

Construction  of  the  contract  between  John  Kandel,  jun.,  and  the  Chesapeake 
and  Delaware  Canal  Company. 

A  contract  is  to  be  construed  with  reference  to  the  whole  instrument. 

No  form  of  words  necessary  to  make  a  covenant;  but  any  expression  in  a 
sealed  instrument  which  manifests  an  intention  to  bind  either  party  to  do  or 
omit  any  act,  possible  in  itself  and  not  immoral  or  unlawful,  will  make  a 
covenant. 

If  there  be  any  doubt  on  the  words  of  an  agreement  they  are  to  be  referred  to 
the  proper  party. 

If  the  language  used  be  the  language  of  both  parties,  it  may  be  taken  distrib- 
utively,  and  used  as  the  words  of  either,  according  to  the  true  intent  and 
meaning  of  the  contract: 

And,  even  where  the  language  is  that  of  the  covenantee,  it  will  be  applied  to 
the  other  party,  if  the  intent  so  require  it. 

An  agreement  on  the  part  of  A.  to  pay  B.  every  fortnight  for  the  work  which 
A's.  engineer  shall  certify  to  have  been  done  by  B.  is  a  covenant  on  the  part 
of  A.  that  his  engineer  shall  make  the  certificates. 

An  agreement  that  the  plff's  work  shall  during  its  progress  be  carefully  exam- 
ined and  inspected;  and  to  prevent  misunderstandings  and  disputes,  it  is 
agreed  that  B.,  W.  or  some  other  competent  engineer,  to  be  selected  by  the 
defendant,  shall  be  the  inspector  of  the  works,  and  shall  estimate  the  exca- 
vation and  embankment,  and  his  estimate  thereof,  when  certified  to  the 
defendant,  shall  be  final  and  conclusive  between  the  parties  —  construed  a 
covenant  by  defendants  to  select  an  engineer,  and  that  their  engineer  should 
inspect  and  estimate  the  work ;  and  a  covenant  on  the  part  of  the  plaintiff, 
that  he  would  be  bound  by  the  result  of  such  estimate. 

An  agreement  that  in  case  the  plaintitT  shall,  from  the  default  of  the  defend- 
ant, be  prevented  from  pursuing  the  best  mode  of  executing  his  contract,  the 
pecuniary  damages  sustained  by  him  in  consequence  thereof,  shall  be  certi- 
fied by  the  defendants'  engineer,  and.  on  his  certificate,  which  shall  be  final 
and  conclusi^'«  between  the  parties,  the  defendant  shall  make  to  the  plaintiff 
such  reasonable  compensation  as  by  said  certificate  may  be  fixed  —  con- 
strued a  covenant  on  the  part  of  the  defendant,  that  in  case  of  prevention, 
their  engineer  should  make  a  certificate  of  damage. 

An  agreement  that  the  time  within  which  it  shall  be  incumbent  on  the  plaintiff 
to  complete  his  contract  shall  not  be  taken  to  be  less  than  four  years,  is  a 
covenant  by  the  defendant  that  he  will  allow  the  plaintiff  four  years  to  com- 
plete it  in :  and  the  unlawfully  driving  him  away  from  the  work  within  that 
time  is  a  breach  of  the  covenant. 

An  agreement  that  if  the  opinion  of  the  defts'.  engineer  shall  be  that  the  plff. 
refuses  or  unreasonablv  negrlects  to  prosecute  his  contract  such  engineer  may 
certify  the  same  to  the  defts.  and  on  his  certificate  the  defts.  shall  have 
the  power  of  determining  that  he  has  abandoned  it: — is  a  covenant  on  the 
part  of  the  plff.,  and  gives  to  the  deft,  the  power,  upon  the  certificate  being 
made,  to  put  an  end  to  the  contract. 

"Such  certificate  does  not  make  the  contract  void  but  only  voidable;  and  the 
power  of  avoiding  it  may  be  uait^ed. 

Any  discrefionary  power  may  he  waived. 

And  though  this  power  of  annuUinfr  the  contract  is  derived  from  a  deed,  or  in- 
strument under  seal,  it  may  be  waived  bv  parol. 

30  ■ 


234  Kandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company. 

The  party  having  the  power  of  establishing  the  forfeiture,  or  of  avoiding  a 
voidable  contract,  must  do  it  within  a  reasonable  time,  and  in  a  lawful  man- 
ner, or  it  is  a  waiver. 

Any  act  legally  inconsistent  with  the  exercise  of  the  power  will  amount  to  a 
wa  iver. 

A  pro«pecti^•e  agreement  to  refer  all  matters  in  dispute  which  may  hereafter 
arise  will  not  oust  the  jurisdiction  of  the  courts  over  such  matters. 

And  even  in  the  case  of  a  submission  of  existing  disputes  either  party  has  the 
right  to  revoke  the  submission  and  prevent  the  award:  though  he  would  be 
liable  on  his  agreement  to  refer. 

A  contract  may  be  declared  on  by  setting  out  a  counterpart  executed  by  only 
one  of  the  parties. 

In  a  plea  of  confession  and  avoidance  the  plea  admits  all  the  material  and  tra* 
versa ble  facts  averred  in  the  breach ;  they  need  not,  therefore,  be  proved ; 
but  it  does  not  admit  the  damage,  which  must  be  proved. 

Judgment  by  default,  or  on  demurrer,  admits  the  cause  of  action,  and  estab- 
lishes the  plflT's.  right  to  recover ;  and,  where  the  contract  declared  on  is  for 
a  sum  certain,  as  in  debt,  and  the  declaration  either  ascertains  the  amount 
or  sets  out  an  instrument  from  which  the  amount  can  be  certainly  ascer- 
tainetl  by  calculation,  the  judgment  is  also  conclusive  as  to  the  amount. 

But  where  the  matter  sued  for  sounds  in  damages,  or  is  in  its  nature  uncer- 
tain, such  a  judgment  establishes  no  amount  of  damages,  but  it  fixes  the 
right  to  recover,  and  the, cause  of  action  need  not  afterwards  be  proved. 

In  covenant  the  damages  are  merely  compensatory  or  remunerative,  and  can 
not  be  exemplary. 

And.  though  the  violation  of  a  covenant  be  with  intent  to  injure  the  other 
partv,  the  intent  cannot  be  considered  in  estimating  damages. 

The  rule  of  assessing  damages  is,  that  whatever  loss  or  damage  naturally  and 
immediately  results  from  the  Avrong  complained  of,  the  wrong  doer  is  bound 
to  compensate. 

Interest  on  damages  is  discretionary  with  the  jury. 

In  an  action  of  covenant  against  a  corporation  a  contract  made  and  executed 
by  a  committee  of  the  board  of  directors,  but  not  under  the  corporate  seal, 
is  not  evidence;  though  the  aiithority  of  the  committee  be  proved,  and  the 
contract  actually  recognized  and  acted  upon  by  the  company. 

The  answer  of  a  corporation  is  evidence  against  them,  though  made  in  a 
different  cause,  and  Avithout  oath. 

The  directions  of  an  agent  of  a  company  in  relation  to  their  business,  and  his 
declarations  at  the  time  of  givinsr  such  orders  in  relation  thereto,  or  to  their 
business  generally,  being  part  of  the  res  gcsta,  are  evidence  against  the  com- 

•  pany  —  but  his  general  declarations,  conversations  or  letters  not  immedi- 
ately connected  with  or  growing  out  of  the  discharge  of  his  agency,  are  not 
evidence. 

And  the  nature  of  his  agency,  and  its  extent,  may  be  inferred  from  facts,  and 
the  connexion  of  his  acts  with  the  business  in  which  he  is  employed. 

A  partv  calling  for  papers  from  the  other  side  makes  them  evidence  if  he  in- 
spects them. 

A  director  of  a  company,  not  being  a  stockholder  nor  a  party  of  record,  is  a 
competent  witness  for  the  company. 

Depositions  taken  on  leading  interrogatories  will  be  suppressed  at  the  trial  if 
exceptions  have  been  filed,  and  the  partv  not  taken  bv  surprise. 

Service  of  interrogatories  by  copy  left  at  the  office  of  the  attorney  of  the  oppo- 
site party,  is  suflRcient  notice  of  the  taking  out  a  commission. 

A  witness  allowed  to  Avrite  out  his  answers  to  interrogatories  where  he  wac 
unable,  tbrouerh  sickness,  to  deliver  them  orally  to  the  commissioners;  and 
the  denosit'ons.  t^^us  tnVen.  admitted  in  evidence. 

The  protect  of  an  inland  biM  is  not  proved  bv  the  notarial  seal,  but  the  notary 
must  be  called:  and  this  though  it  appear  from  the  bill  that  it  has  been  in- 
dorsed to  a  foreigner. 

Covenant.     Xarr.     Pleas.     Replications.     Demurrers. 

Friday,  Novem'ber  29fli  1833.  This  case  came  up  for  argument 
on  the  demurrers  to  the  second  and  fhird  counts  of  the  declaration; 
the  demurrers  to  the  seventh  and  eight  counts  having  heen  argued. 


Randel,  Jux,  vs.  Ches.  &  Del.  Canal  Company.  235 

at  the  last  term.  (See  ante  lol.j  The  argument  was  conducted 
by  Frame,  Attorney  General;  Bayard  and  Jones  for  defts.,  the 
demurrants;  and  Clayton,  Rogers,  Read,  jr.,  and  Ingersoll,  for  the 
plff.    It  occupied  six  days. 

The  contract  declared  on  is  set  out  at  length  in  the  report  of  the 
former  argument,  ante  1.^1,  &c. 

The  declaration  contained  eight  counts. 

First  count:  On  the  lock  contract,  (unimportant.)  On  this  count 
issue  was  Joined  on  the  plea  of  non  est  factum. 

Second  count:  General  plea  of  non  est  factum  and  issue. 

(First  breach.)  The  first  breach  assigned  in  the  secound  count 
was  on  that  clause  of  the  contract  which  provides  for  the  inspection 
and  examination  of  the  works  during  their  progress,  (fage  152.) 
It  was  assigned  in  these  words : —  And  protesting,  &c.  "  the  said 
John  Eandel,  jun.,  in  fact  saith  that  the  said  works  by  the  said  John 
Randel,  jun.,  in  and  by  the  said  articles  of  agreement  covenanted  to 
be  performed  as  afsd.  were  not  during  their  progress  carefully  ex- 
amined and  inspected  by  the  said  Benjamin  Wright,  esquire,  nor  by 
any  other  competent  engineer  selected  by  the  said  party  of  the  sec- 
ond part,  to  wit:  at  iN'ewcastle  county  aforesaid. 

(Plea  )  To  this  breach  the  clefts,  pleaded  plea  Xo.  3,  as  follows: 
Actio  non,  &c.,  "  Because  they  say  that  heretofore,  to  wit :  on  the 
30th  day  of  July,  A.  D.  1825,  and  long  before  and  since,  one  Ben- 
jamin Wright  (being  the  same  person  mentioned  in  the  said  articles 
of  agreement  by  the  name  of  Benjamin  Wright,  esquire,  was  the  en- 
gineer in  chief  for  the  time  then  being  in  the  employ  of  the  said 
defts.,  to  wit:  at  Newcastle  county  afsd.,  and  that  on  the  day  and 
year  last  afsd.  at  the  county  afsd.  the  opinion  of  the  said  Benjamin 
Wright  then  and  there  so  being  such  engineer  in  chief  for  the  time 
then  being  in  the  employ  of  the  said  defts.,  as  afsd.,  was  that  the 
said  John  Randel,  jun.,  did  unreasonably  neglect  to  prosecute  the 
said  contract  in  the  said  articles  of  agreement  made  and  contained, 
and  that  afterwards,  to  wit:  on  the  day  and  year  last  afsd.  at,  &c., 
the  said  Benjamin  Wright  then  and  there  so  being  such  engineer  in 
chief  for  the  time  then  being,  in  the  employ  of  the  said  defts.  as 
afsd.,  did  in  and  by  his  certificate  certify  his  said  opinion  to  the  said 
defts.;  and  that  afterwards,  to  wit:  on  the  30th  day  of  Sept'r.  in  the 
year  last  afsd.,  they  the  said  defts.  did  thereupon  on  said  certificate 
determine  the  said;  contract  to  be  by  him  the  said  John  Eandel,  jun. 
abandoned,  of  which  said  certificate  and  determination  the  said  John 
Randel,  jun.,  afterwards,  to  wit:  on  the  first  day  of  October  in  the 
year  last  afsd.^  at  the  county  afsd.  had  notice;  by  means  whereof 
and  by  force  of  the  premises  the  said  defts.  became  and  then  and 
there  were  entirely  exonerated  from  every  obligation  imposed  on 
them  by  the  said  articles  of  agreement,  except  to  pay  for  work  then 
already  done  by  the  said  John  Randel,  jun." 

(Re plication. S-  The  replication  to  this  plea  was  as  follows: — 
Precludi  non.  &c.  "  Because  he  says  that  shortly  after  the  making 
and  executing  the  said  articles  of  agreement,  to  wit :  on  or  about  the 
loth  day  of  April,  A.  I).  1824,  to  wit:  at,  &c.,  the  said  John  Ran- 
del, jun.  entered  upon  the  performance  of  the  work  so  by  him  con- 
tracted and  covenanted  to  be  performed  in  and  by  the  said  articles 
of  agreement,  and  at  great  expense  and  labor  progressed  in  the  per- 


236  Randel,  Jun.  vs,  Ches.  &  Del.  Canal  Company. 

fomiance  of  the  said  works  from  day  to  day  until  the  Ist  day  of  Oct., 
A.  D,  1825  inclusive, 'to  wit:  at,  &c.,  during  which  time,  that  is  to 
say,  from  the  said  15th  day  of  April  until  the  said  1st  day  of  Octo- 
ber inclusive,  the  said  John  Randel,  jun.,  did  not  abandon  his  said 
contract,  nor  did  he  refuse  or  unreasonably  neglect  to  prosecute  the 
same,  and  that  from  the  30th  day  of  July,  A.  D.  1825,  until  the  said 
1st  day  of  October  inclusive,  in  the  year  last  afsd.,  on  which  said 
last  mentioned  day,  the  said  John  Randel,  jun.,  had  notice  of  the 
said  certificate  of  the  said  Benjamin  Wright,  and  of  the  said  deter- 
mination of  the  said  company  in  the  said  plea  mentioned  as  is  al- 
ledged  in  the  said  plea,  the  said  John  Randel,  jun.,  without  refusing 
or  unreasonably  neglecting  to  prosecute  the  contract  in  the  said  dec- 
laration mentioned,  did  with  great  expense  and  labor  prosecute  the 
said  contract  under  the  inspection,  by  and  with  the  permission  and 
by  and  under  the  direction  of  the  said  company,  to  wit:  at,  &c. :  t"ti 
between  the  said  30th  day  of  July,  A.  D.  1825,  and  the  said  30th  day 
of  September  in  the  year  last  afsd.,  the  said  the  Chesapeake  and  Dela- 
ware Canal  Company  did  pay  to  him  the  said  John  Randel,  jun.,  for 
work  done  under  and  by  virtue  of  his  said  contract  after  the  said  30th 
day  of  July  and  before  the  said  30th  day  of  September,  divers  sums 
of  money  amounting  to  a  large  sum,  to  wit:  the  sum  of  thirty  thou- 
sand dollars,  to  wit:  at,  &c.,  and  did  then  and  there,  therein  and 
thereby  acknowledge  the  said  contract  to  be  in  full  force  and  effect: 
and  the  said  John  Randel,  jun.,  further  ih  fact  says,  that  although 
he  did  not  at  any  time  after  the  making  of  the  said  certificate  refuse 
or  unreasonably  neglect  to  prosecute  his  said  contract,  to  wit :  at,  &c. 
yet  the  said  work  by  him  the  said  John  Randel,  jun.,  performed 
as  afsd.  in  prosecution  of  the  said  contract  between  the  said  30th 
day  of  July  and  the  1st  day  of  October  inclusive,  in  the  year  last 
afsd.,  was  that  portion  of  the  work  he  had  so  covenanted  to  perform 
as  afsd.,  which  was  less  profitable  and  more  disadvantageous  to  him 
the  said  John  Randel,  jun.,  than  the  work  remaining  to  be  done  and 
performed  by  him  the  said  John  Randel,  jun.,  in  pursuance  of  the 
said  contract  after  notice  was  given  to  him  that  the  said  the  Chesa- 
peake and  Delaware  Canal  Company,  had  determined  his  said  con- 
tract to  be  by  him  abandoned  as  is  alledged  in  the  said  plea,  to  wit: 
at,  &c.  afsd.,  and  that  the  work  remaining  to  be  done  and  performed 
by  him  the  said  John  Randel,  jun.,  in  pursuance  of  the  said  contract 
after  the  said  the  Chesapeake  and  Delaware  Canal  Company,  had  as 
is  alledged  in  the  said  plea  determined  his  said  contract  to  be  by  him 
abandoned,  and  after  the  said  1st  day  of  October  in  the  year  last 
afsd.,  to  wit:  at,  &c.,  was  that  portion  of  the  whole  work  so  by  him 
covenanted  to  be  performed  in  and  by  the  said  articles  of  asrreement 
which  was  most  profitable  and  advantageous  to  him  the^said  John 
Randel,  jun.,  and  so  the  said  John  Randel,  jun.,  in  fact  says  that  the 
said  the  Chesapeake  and  Delaware  Canal  Company  did  before  the 
said  30th  day  of  September  in  the  year  last  afsd.  at,  &c.  afsd.  waive 
the  said  certificate  of  the  said  Benjamin  Wright,  and  the  power  of 
determining  on  the  said  certificate  that  the  said  contract  of  the  said 
John  Randel,  jun.,  had  been  by  him  abandoned,  and  so  did  ap- 
prove, ratify  and  confirm  the  said  contract,  to  wit:  after  the  said 
30th  day  of  July,  and  before  the  said  alledged  determination  of 
the  said  company  that  the  said  John  Randel,  junr's.  said  contract 
was  by  him  abandoned,  to  wit:  at  Newcastle  county  aforesaid." 


r 


Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  237 

(Demurrer  and  Joinder.)  To  this  replication  the  defts.  demurred 
generally,  and  the  plff.  joined  in  demurrer. 

(Plea  No.  5.)  To  the  first  breach  assigned  in  the  second  count 
the  defts.  also  pleaded  as  follows :  — 

Actio  non,  &c.  "  Because  they  say  that  heretofore,  to  wit :  on  the 
twenty-fifth  day  of  March,  A.  D.  1824,  at  the  county  afsd.,  they 
the  said  defts.  did  appoint  one  Benjamin  Wright,  being  the  same 
person  mentioned  in  the  said  articles  of  agreement  by  the  name  of 
Benjamin  Wright,  esquire,  their  engineer  in  chief,  and  did  after- 
guards, to  wit:  on  the  twenty-sixth  day  of  March  in  the  same  year 
at  the  county  afsd.,  select  him  as  their  inspector  of  the  said  works 
covenanted  to  be  performed  by  the  said  John  Randel,  jun.,  in  and 
by  the  said  articles  of  agreement,  and  the  said  defts.  aver  that  the 
said  Benjamin  Wright  remained  in  their  employ,  and  was  their  en- 
gineer in  chief,  and  remained  and  was  the  inspector  of  the  said 
works  selected  by  them  as  afsd.,  during  their  progress  and  until  and 
after  the  said  John  ceased  working  upon  the  said  Chesapeake  and 
Delaware  Canal,  to  wit:  at  the  county  aforesaid." 

(Replication.)  Precludi  non,  &c.  "  Because  he  says  that  the 
said  defts.  did  not  appoint  the  said  Benjamin  Wright,  esquire,  in 
the  said  articles  of  agreement  mentioned  their  engineer  in  chief  at 
the  time  and  in  manner  and  form  as  is  alledged  in  the  said  plea,  and 
did  not  select  him  the  said  Benjamin  Wright,  as  the  inspector  of 
the  said  works  covenanted  to  be  performed  by  the  said  John  Ean- 
del,  jun.,  in  and  by  the  said  articles  of  agreement  at  the  time  and 
in  manner  and  form  as  is  alledged  in  the  said  plea,  nor  did  the  said 
Benjamin  remain  in  the  employ  of  the  said  defts.,  nor  was  he  their 
engineer  in  chief,  nor  did  he  remain  nor  was  he  the  inspector  of  the 
said  works  selected  by  them  as  afsd.,  during  their  progress,  and  until 
and  after  the  said  John  Randel,  jun.,  ceased  working  upon  the  said 
Chesapeake  and  Delaware  Canal,  to  Avit:  at  N"ewcastle  county  afsd., 
and  this  he  prays  may  be  inquired  of  by  the  country,  &c." 

(Demurrer  and  Joinder.)  The  defts.  demurred  generally  and 
specially  to  this  replication,  assigning  for  cause  that  the  time  of  ap- 
pointing the  inspector  was  not  traversable.  Plff.  joined  in  de- 
murrer. 

(Second  breach.)  The  second  breach  assigned  in  the  second 
count  was  on  that  clause  of  the  contract  which  provides  that  the  in- 
spector of  the  works  should  estimate  the  number  of  cubic  yards  of 
excavation  and  embankment.    The  substance  of  the  breach  was 

"  That  the  said  Benjamin  Wright  nor  any  other  competent  engi- 
neer selected,  &c.,  did  not  estimate  the  number  of  cubic  yards  of 
excavation  and  also  of  embankment,"  &c. 

(Plea.)  To  this  breach  the  same  plea  of  ahandonment  (No.  3,) 
was  pleaded. 

(Replication.)     The  same  replication  of  waiver,  ut  ante. 

Demurrer  and  Joinder. 

(Plea.)  Also  the  same  plea  of  appointment  of  inspector  (No.  5,) 
was  pleaded. 

(Replication.)  The  same  as  before  traversing  the  time  at  appoint- 
ment. 


238  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

Demurrer,  general  and  special  as  before,  and  Joinder. 

(3rd  breach.)  The  third  breach  in  the  second  count  was  assigned 
on  the  prevention  clause  of  the  contract,  (ante  153.> 

"  That  Randel  was  from  the  default  of  the  canal  company  pre- 
vented from  pursuing  the  due  and  best  mode  of  executing  his  con- 
tract, &c.,  that  the  pecuniary  damage  sustained  by  him,  &c.,  was,  &c., 
yet  that  the  said  damage  has  not  been  certilied  by  the  engineer,"  &c. 

Plea.  The  abandonment.  Replication,  Waiver.  Demurrer  and 
Joinder  as  before. 

(4th  breach.)     On  the  same  "  prevention  clause." 

"  That  from  the  default,  &c.,  plff.  was  prevented  from  entering 
upon  lands  for  the  purpose  of  executing  his  contract,  that  the  pe- 
cuniary damage  was,  &c.,  yet  said  damage  was  not  certified  by  the 
engineer,  &c.,  although  he  well  knew  the  premises  and  was   fuh 
aware  of  the  extent  of  the  damage,"  &c. 

Plea.  The  abandonment.  Replication.  Waiver.  Demurrer  and 
Joinder. 

(5th  breach.)     On  the  same  "  prevention  clause," 

"  That  from  the  default,  &c.,  plff.  was  prevented  from  flooding 
lands  for  the  purpose  of  executing  his  contract;  that  the  pecuniary 
damage  amounted,  &c.  yet  said  damage  has  not  been  certified  by  the 
engineer,  &c.,  although  he  well  knew,"  &c. 

Plea.  The  abandonment.  Replication.  Waiver.  Demurrer  and 
Joinder. 

(6th  breach.)  The  sixth  breach  in  the  second  count  was  assigned 
on  that  clause  of  the  contract  which  relates  to  the  time  in  which  it 
should  be  incumbent  on  Randel  to  complete  the  canal. 

The  substance  of  the  breach  was  as  follows :  — 

"  That  the  canal  company  on  the  30th  September  1825,  did  un- 
lawfully and  unjustly  assume  the  power  of  determining  and  unlaw- 
fully and  unjustly  did  determine  that  the  said  John  Randel  had  aban- 
doned his  contract,  and  said  company  did  on  the  20th  October  1825, 
prevent  the  said  J.  Randel  from  entering  upon  the  lands  of  the  said 
company  for  the  purpose  of  executing  the  said  contract;  and  so  the 
said  J.  Randel  saith  that  the  said  company  did,  &c.,  talce  the  time, 
&c.  (in  the  words  of  the  contract.) 

Plea.  The  abandonment.  Replication.  Waiver.  Demurrer  and 
Joinder. 

Third  count.     1st  breach.     On  the  afsd,  "  prevention  clause." 

"  That  plff.  was  prevented  from  pursuing  the  due  and  best  mode, 
&c.,  by  the  default  of  the  company  in  these  particulars;  that  thev 
prevented  him  from  entering  upon  lands  for  the  purpose,  &c.,  and 
unlawfully,  &c.,  declared  the  abandonment;  and  did  take  the  time 
within  which,  <S:c.  That  the  pecuniary  damage  amounted,  &c.,  yet 
said  damage  hath  not  been  certified  by  the  engineer,  &c.,  although 
he  well  knew  the  premises,  &c. 

Plea.  The  abandonment.  Replication.  Waiver.  Demurrer  and 
Joinder. 

(2d  breach.)     On  the  "  prevention  clause." 

"  That  the  company  did  take  the  time,  &c.  that  the  pecuniary  dam- 
ages amounted,  &c.  Yet  the  said  engineer  did  not  and  would  not 
certify,  &c. 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  239 

Plea.  The  abandonment.  Eeplication.  "Waiver.  Demurrer  and 
Joinder. 

(3d  breach.)     "  On  the  prevention  clause." 

"  That  the  company  unlawfully  declared  the  abandonment  and  pre- 
vented plff.  from  pursuing  the  due  and  best  mode,  &c.  and  from  en- 
tering upon  lands,  &c.  to  wit :  the  lands  on  which  the  canal  is  located, 
and  thereby  took  the  time,  &c.  that  the  pecuniary  damages  amount- 
ed, &c.  Yet  that  the  said  engineer  although  he  well  knew,  &c.  and 
was  fully  aware,  &c.  did  not  and  would  not  certify,  &c. 

Plea.     The  abatement.     Rep.      Waiver.      Demurrer  and  Joinder. 

{4:th  breach.)     On  the  "  prevention  clause." 

"  That  the  company  prevented  plff.  from  entering  upon  lands  nec- 
essary to  be  occupied  by  him  for  executing  the  work  and  so  took  the 
time,  &c.  that  the  damage  was,  &c.  Yet  the  engineer,  &c.  altho'  he 
well  knew  and  was  fully  aware  of  the  damage,  &c.  did  not  and  would 
not  certify,  &c. 

Plea.     The  abandonment.     Rep.     AVaiver.     Demurrer  and  Joinder. 

(5th  breach.)     On  the  covenant  to  pay  for  work  done.   (152.) 

"  That  on  the  15th  December,  1825,  Benjamin  Wright,  the  engi- 
neer, afsd.  certified  the  amount  of  work  done  at  $224,291  51.  Yet 
the  company  have  not  paid  said  sum,"  &c. 

Pleas  {No.  7  and  8.  which  weye  withdrawn.) 

Plea.  (]S'"o.  9.)  Payment  on  the  15th  December,  1825,  of  $221,428 
43,  and  as  to  the  balance  a  set  off  of  a  bond  for  $15,000  due  from 
plff.  to  defts.  setting  out  the  bond,  &c.,  particularly. 

Replication,  traversing  pajment  of  the  $221,428  43  at  the  time 
and  in  the  manner  pleaded;  denying  that  plff.  is  indebted  to  defts.  in 
said  sum  of  $15,000  on  the  bond  afsd.  made  at  the  time  and  in  the 
manner  pleaded,  and  denying  that  said  bond  is  due  and  unpaid. 

Demurrer  general  and  special  to  this  replication,  because  it  tra- 
verses the  time  of  pa}Tnent  of  the  said  sum  of  $221,428  43.    Joinder. 

(6th  breach.)     On  the  same  covenant  to  pay  for  work  done. 

'^That  the  company,  on  the  30th  September,  1825,  declared  the 
abandonment;  that  on  the  10th  June,  1826,  there  was  due  to  John 
Randel.  for  work  done,  $350,000:  yet  the  company  have  not  paid," 
&c. 

Plea  (No.  10.)  "That  between  the  first  and  seventh  of  June,  1824, 
the  company  revised  the  schedule  of  prices;  that  a  difference  of  opin- 
ion thereupon  arose  between  the  parties,  and  that  Benjamin  Wright, 
the  engineer  aforesaid,  on  the  same  day  adopted  and  awarded  the 
said  revised  schedule;  that  the  work  at  the  revised  prices  amounted 
to  the  sum  of  $224,291  51,  which  they  have  paid  to  plaintiff,  to  wit: 
on  the  15th  Dccernber,  1825. 

Replication.  Denying  the  revision  at  the  time,  &c.  the  award, 
&c. 

Demurrer,  general  and  special,  because  plaintiff  has  traversed  the 
time  of  the  revision,  &c.      Joinder  in  demurrer. 

There  were  also  other  pleas  (Nos.  11  and  12)  to  this  breach,  which 
were  withdrawn. 

(7th  breach.)  On  the  seventh  breach  of  the  third  court  issue  was 
joined  to  the  jury  on  the  facts.     See  post. 

(Sth  breach.)     On  the  "prevention  clause." 


240  Randel,  Jdn.  vs.  Ches.  &  Del.  Canal  Company. 

'*  That  on  the  19th  of  October,  1825,  the  company  disposed  of 
Randel's  contract  and  relet  it  to  Clement,  Blackstock  and  Vanslyke, 
by  reason  whereof  Randel  was  obstructed  in  the  execution  of  the 
work,  and  was  prevented  from  pursuing  the  due  and  best  mode,  &c., 
and  from  entering  upon  lands,  &c.,  that  the  damage  amounted,  &c., 
yet  the  engineer  did  not  and  would  not  certify,"  &c. 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

(9th  breach.)    On  the  "  prevention  clause." 

"  That  the  company  on  the  1st  October,  1825,  (although  Randel 
was  duly  progressing,  &c.)  did  unlawfully  declare  the  abandonment; 
and  did  prevent  him  from  pursuing  the  due  and  best  mode,  &c.  and 
from  entering  upon  lands,  &c.  to  wit:  the  lands  on  which  the  canal 
was  located ;  that  by  the  default  aforesaid,  the  damage  was,  &c. ;  yet 
the  engineer,  although,  &c.,  did  not  and  would  not  certify,  &c." 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

(10th  breach.)     On  the  "  time  covenant." 

"  That  Randel  was  duly  progressing,  &c.  Yet  the  company  on, 
&c.,  proceeded  to  dispose  of  the  contract,  and  contracted  with  Cle- 
ment, Blackstock  and  Vanslyke;  Robinson,  Carr  and  Dexter,  and  did 
prevent  him  from  pursuing  the  due  and  best  mode,  &g.,  and  so  took 
the  time  to  be  less,"  &c. 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

(11th  breach.)     On  the  "time  covenant." 

"That  Randel  duly  progressed,  &c.;  yet  the  company  did  pro- 
ceed to  dispose  of  the  contract,  and  did  contract  with  Clement, 
Blackstock  and  Vanslyke,  and  did  prevent  him  from  pursuing  the 
due  and  best  mode,  &c.,  and  so  took  the  time,"  &c. 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

(12th  breach.)     On  the  "time  covenant." 

"That  Randel  was  duly  progressing,  &c.;  yet  the  company  dis- 
posed of  the  contract,  &c.,  and  prevented  him  from  pursuing,  &c., 
and  so  took  the  time,"  &c. 

(13th  breach.)     On  the  "  time  covenant." 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

"  That  Randel  was  duly  progressing,  &e.,  absque  hoc  that  he  neg- 
lected, &c.;  yet  the  company  disposed  of  the  contract  and  prevented 
him  from  piirsuing,  &c.,  absque  hoc  that  the  company  lawfully  de- 
clared the  contract  abandoned,  &c.,  and  so  took  the  time,"  &c. 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

(I'ith  breach.)    On  the  "time  covenant." 

"  That  the  company  did  take  the  time,  &c.,  to  be  less,"  &c. 

Plea.     The  abandonment.     Rep.     Waiver.     Demurrer  and  Joinder. 

Fourth  count.  )         mi,     •  n  .r  ■  •  . 

E,.,,7  .  I         The  issues  on  all  these  counts  were  issues  of 

Fifth  count.  )•  if    i  .     ii     .  c.  A 

Sixth  count.  )  ^«ct  to  the  pry.     See  post. 

Seventh  count  .Demurrer  and  judgment  for  plaintiff  last  term, 
ante  151,  172. 

Eight  count.  Demurrer  and  judgment  for  defendant  last  term, 
Id. 

Frame.  Attorney  General,  for  the  defendants — the  demurrants: 

T  regret  the  rarsre  thp  dispussion  of  these  demurrers  must  take, 
but  the  intricacy  of  the  pleadings  and  the  great  length  of  the  record 


i^ 


Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  241 


in  this  cause,  open  up  a  course  of  argument  which  it  will  be  our  duty 
to  pursue,  though  it  may  consume  much  of  the  time  of  this  court. 
The  questions  which  are  to  be  presented  in  this  argument  arise  on 
the  pleadings  belonging  to  the  second  and  third  counts  of  the  declara- 
tion. The  second  count  contains  six  breaches,  the  third,  fourteen; 
all  of  which  will  be  reached  by  these  demurrers  except  the  seventh 
breach  of  the  third  count,  upon  which  issue  is  joined  to  the  jury. 
I  shall  class  them  in  five  classes  or  five  clauses  of  the  contract. 

1st.  The  inspection  of  the  work. 

8d.  Estimating  the  work  done. 

3d.  Certifying  of  damages  by  the  engineer. 

4th.  Taking  the  time. 

5th.  Payment  for  work  done. 

First.  On  the  clause  in  relation  to  inspecting  the  work  and  esti- 
mating the  amount :  the  first  and  second  breaches  in  the  second  count. 
I  remark  in  the  first  place  that  though  these  demurrers  are  to  the  re- 
plications they  run  back  according  to  established  rules  on  the  whole 
pleadings,  and  open  defects  in  the  narr,  as  well  as  in  the  replication. 
Gould's  Plead.  404. 

What  is  the  breach?  Not  that  the  canal  company  did  not  select 
an  engineer  and  inspector,  but  that  the  work  was  not  in  fact  inspect- 
ed and  estimated  by  the  engineer.  There  is  a  clear  distinction  be- 
tween a  breach  that  the  company  did  not  select,  and  a  breach  that 
their  engineer  did  not  inspect;  which  last  is  the  plain  meaning  of  the 
breach.  And  if  this  is  doubted,  and  we  are  driven  to  construc- 
tion it  must  be  so  considered,  the  rule  being  that  the  construction 
shall  be  made  most  strongly  against  the  pleader. — 1  Chitty's  Plead. 
522,  241.  This  being  the  breach  the  question  is  whether  the  com- 
pany is  liable  for  those  acts  or  omissions  of  the  engineer  that  are  al- 
ledged  as  the  breach.  *  Does  the  contract  bind  the  company  not  only 
to  appoint  an  engineer  and  select  an  inspector  but  to  see  that  the 
person  so  selected  does  actually  inspect  and  certify  the  work?  We 
say  no.  The  canal  company  are  not  liable  to  Eandel  for  any  omis- 
sion in  this  respect  of  the  inspector  appointed  by  them.  There  need 
be  no  difficulty  about  this.  The  contract  is  in  writing.  The  inten- 
tion of  the  parties  to  be  collected  from  the  words  of  their  contract  is 
to  govern;  the  plain  meaning  of  the  words  is  to  be  taken.  Looking 
to  this  rule,  the  first  remark  to  be  made  is  that  the  company  did  not 
so  bind  themselves  by  a  plain  and  direct  obligation.  If  it  be  there 
it  is  at  least  not  there  plainly  and  directly  set  out.  Then  how  is  it 
inferred?  Have  they  bound  themselves  indirectly,  by  inference  or 
necessary  construction.  How  was  this  inspection  to  be  made?  Not 
by  the  company,  but  by  another.  Under  the  contract  it  could  not 
be  done  by  the  defendants  themselves,  but  must  be  done  by  a  third 
person.  Much  force  is  derived  from  this  circumstance  to  our  posi- 
tion, that  the  company  were  not  bound  for  the  actual  inspection  of 
the  work.  Would  it  not  be  singular  that  they  should  bind  them- 
selves to  the  performance  of  an  act,  and  at  the  same  time  put  it  out 
of  their  power  to  do  it  personally?  What  power  had  they  to  do  it 
through  another?  They  might  appoint  an  inspector,  but  they  could 
not  make  him  inspect.      The  law  holds  no  man  to  impossibilities; 

31 


243  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

and  the  court  will  not  infer  such  an  engagement  from  a  contract 
without  a  plain  and  direct  stipulation,  or  an  obvious  and  necessary 
construction. 

Another  reason  why  the  canal  company  did  not  undertake  that  this 
inspector  should  perform  the  duty  assigned  him.  It  involved  the  ex- 
ercise of  reason,  science,  skill  and  discretion.  The  parties  showed 
they  intended  to  commit  it  only  to  a  person  of  skill  and  judgment, 
and  they  necessarily  gave  him  a  discretion  in  its  exercise.  Would  it 
not  be  absurd  to  suppose  that  the  company  bound  themselves  to  com- 
pel the  action  of  this  agent  having  a  discretion  which  they  could 
not  control? 

Again;  it  is  clear  that  this  agent  was  to  be  indifferent  between  the 
parties;  not  the  agent  of  either  party,  but  of  both;  it  is  therefore  a 
reference  to  a  mutual  umpire,  for  whose  action  neither  of  the  con- 
tracting parties  was  bound  to  the  other.  The  intervention  of  this 
agent  was  to  "prevent  disputes,"  &c.,  was  it  likely  to  prevent  dis- 
putes if  the  inspector  was  the  agent,  and  under  the  control  of  one 
party?  The  reference  might  as  well  have  been  directly  to  the  com- 
pany. But  the  contract  shows  that  neither  of  the  parties  designed 
to  trust  the  other  in  this  important  matter ;  they  looked  out  for  some 
third  person  —  an  indifferent  judge,  to  whom  they  both  referred  their 
rights.  Eandel  so  far  yielded  to  the  company  as  to  give  them  the  se- 
lection of  the  agent;  there  the  yielding  ceases;  when  selected  he  is 
the  inspector  and  agent  of  both  parties,  and  answerable  equally  to 
both. 

The  other  side  will  contend  that  this  is  the  covenant  of  the  com- 
pany, and  not  equally  the  covenant  of  John  Randel;  and  indeed  we 
must  come  to  that  if  Ave  are  to  hold  the  company  answerable  for  his 
acts.  Now  is  this  true  or  is  it  not?  First,  How  does  the  engineer 
get  his  authority  to  decide,  and  what  makes  his  decision  binding  on 
both  parties?  The  contract;  the  stipulation  of  both.  Without  this 
stipulation  the  engineer,  as  the  mere  agent  of  the  company,  might 
measure  and  estimate,  but  his  report  would  have  no  obligatory  force 
upon  Randel.  His  power,  in  this  respect,  arises  from  the  mutual 
covenant  of  both  parties.  Would  it  not  be  strange  then  to  suppose 
that  either  party  was  bound  to  the  other  for  the  faithful  performance 
of  his  duty,  when  that  duty  arises  from  the  joint  covenant  of  both 
and  derives  all  its  force  from  the  stipulation  of  both?  Again:  For 
whose  benefit  was  this  inspection  to  be  made?  For  the  benefit  of 
both,  but  chiefly  for  the  company.  They  were  chiefly  interested  in 
it.  It  was  of  the  utmost  consequence  to  them  that  the  work  should 
be  carefully  inspected.  And  yet  it  is  contended  that  they  have  espe- 
cially covenanted  and  bound  themselves  to  the  other  party  for  the 
performance  of  an  act  which  was  chiefly  for  their  own  benefit.  I 
conclude  then  that  the  canal  company  are  not  bound  by  this  contract 
further  than  to  appoint  an  engineer  and  select  him  as  the  inspector 
of  works;  in  the  performance  of  that  duty  he  was  the  agent  of  both 
parties. 

Third.  Having  considered  the  two  clauses  of  inspecting  the  work 
and  estimating  the  amount  together,  I  come  now  to  those  breaches 
assigned  on  what  has  been  called  the  prevention  covenant.  They 
are  the  third,  fourth,  and  fifth  breaches  of  the  second  count;  and  the 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  243 

first,  second,  third,  fourth,  eighth  and  ninth  breaches  of  the  third 
count;  and  are  assigned  on  this  clause  of  the  contract. 

"And  it  is  further  agreed  as  aforesaid,  that  in  case  the  party  of  the 
first  part  shall  from  the  default  of  the  party  of  the  second  part  in  any 
particular,  be  prevented  from  pursuing  the  due  and  best  mode  of 
executing  this  contract,  or  from  entering  upon  or  flooding  lands  for 
that  purpose,  the  pecuniary  damage  sustained  by  him  in  consequence 
thereof,  shall  be  certified  by  the  engineer  of  the  party  of  the  second 
part,  for  the  time  being,  and  on  his  certificate,  which  shall  be  final 
and  conclusive  between  the  parties,  the  party  of  the  second  part  shall 
make  to  the  party  of  the  first  part,  such  reasonable  compensation  and 
allowance,  as  by  the  said  certificate  may  be  ascertained  and  fixed." 

This  clause  was  considered  on  the  former  argument,  but  the  deci- 
sion of  the  court  went  on  a  different  ground,  the  defect  of  the  count 
in  not  averring  actual  damage ;  we  therefore  do  not  design  to  contro- 
vert any  decision  of  the  court  by  making  it  again  the  subject  of  argu- 
ment. Most  of  the  remarks  made  under  the  last  head,  are  equally 
applicable  to  this;  the  question  here  being  whether  the  company 
were  bound  to  see  that  the  engineer  certified  damages  arising  from 
prevention,  whenever  they  were  sustained.  We  contend  as  before, 
that  this  is  the  covenant  of  both  parties;  a  joint  stipulation,  and  mu- 
tual reference  to  an  agent  deriving  his  power  from  both,  responsible 
to  both,  and  for  whose  acts  or  neglect,  neither  of  the  contracting  par- 
ties is  answerable  to  the  other.  It  may  be  urged  as  it  was  urged,  that 
this  cannot  be  a  reference  because  there  is  a  general  reference  at  the 
end  of  the  contract,  and  this  would  make  two  references  of  the  same 
subject  matter.  But  this  argument  goes  too  far,  for  it  would  apply 
to  other  provisions  of  the  contract,  which  are  too  plain  to  admit  of  a 
doubt.  For  instance,  in  the  matter  of  revising  prices  the  engineer  is 
appointed  umpire  eo  nomine,  and  the  clause  at  the  end  referring  all 
matters  is  no  more  inconsistent  with  a  reference  in  this  clause  than  in 
the  revision  of  prices.  The  truth  is,  that  these  clauses  make  special 
matters  of  reference,  and  the  last  clause  is  general  on  all  subjects  of 
difference,  and  does  not  exclude  the  prior  particular  references.  This 
ciccurs  frequently :  the  slopes  of  the  canal ;  the  contingent  reservation 
of  ten  per  cent.;  the  revision  of  prices;  the  abandonment  clause;  the 
clause  in  relation  to  deviations;  in  relation  to  all  these  matters  and 
others,  a  reference  is  made  to  the  engineer  as  an  umpire,  referee  or 
arbitrator,  and  the  concluding  general  reference  is  no  more  incon- 
sistent with  the  matter  in  hand  than  with  all  these  clauses.  It  was 
urged  on  the  former  agreement  that  this  construction  would  cut  off 
all  obligations  on  the  part  of  the  company,  other  than  to,  pay  for 
work  done;  and  the  abandonment  clause  was  pointed  out  as  recogniz- 
ing other  obligations  than  those  to  pay  for  work:  so  there  are;  there 
is  one  in  this  very  clause  —  to  pay  the  damages  certified.  There  is 
also  an  obligation  to  pay  the  amount  certified  in  case  of  deviation. 
These  are  sufficient  to  satisfy  the  allusion  in  the  abandonment  clause 
to  other  obligations  than  to  pay  for  work  done,  and  they  destroy  the 
force  of  the  argument  drawn  from  it.  We  therefore  conclude  that 
this  is  not  a  covenant  on  the  part  of  the  company;  that  the  engineer 
shall  certify  damages,  but  a  mutual  covenant  and  reference  to  an 
umpire  for  whose  neglect  in  this  particular  neither  party  is  answer- 


244  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

able  to  the  other.  It  was  not  a  part  of  the  duty  of  the  engineer,  as 
such,  to  certify  these  damages;  his  duty  and  his  authority  in  this  re- 
spect, grow  out  of  the  mutual  agreement  and  contract  of  the  parties. 

Fourth.  The  next  question  is,  that  important  one  which  arises  on 
the  clause  which  has  been  called  the  time  covenant,  and  on  which 
several  breaches  are  assigned;  the  sixth  of  the  second  count,  and  the 
tenth,  eleventh,  twelfth,  thirteenth  and  fourteenth  breaches  of  the 
third  count. 

"And  it  is  further  understood  and  agreed  as  aforesaid,  that  the 
time  within  which  it  shall  be  incumbent  on  the  said  party  of  the  ^rst 
part,  fully  to  perform  and  complete  the  said  contract,  shall. not  be 
taken  to  be  less  than  four  years  from  and  after  the  first  day  of  May 
next  ensuing." 

It  may  be  contended,  on  the  other  side,  that  this  question  has  al- 
ready been  decided  on  the  former  demurrers;  but  it  is  not  so.  We 
don't  mean  to  question  that  decision.  It  amounted  only  to  this,  that 
the  clause  in  question  contained  a  covenant  capable  of  violation,  and 
that  a  breach  thereof  was  sufficiently  assigned  in  the  seventh  count. 
It  decided  nothing  as  to  what  constituted  a  taking  the  time;  the 
breach  set  out  no  acts  of  taking  time.  The  question  now  is  what 
acts  constitute  a  taking  of  the  time  within  the  meaning  of  the  cove- 
nant, or  rather,  whether  the  acts  set  out  in  these  breaches  amount  to 
a  violation  of  that  covenant. 

The  fourteenth  breach  is  similar  to  the  one  already  decided  in  the 
seventh  count,  and  on  that  the  plaintiff  will  be  entitled  to  judgment; 
but  this  will  not  entitle  him  to  judgment  on  the  defective  breaches. 
3  Saund.  Rep.  380. 

Do  the  acts  set  forth  in  the  remaining  breaches  constitute  a  viola- 
tion of  this  covenant?  They  may  be  arranged  in  two  classes:  First,. 
That  the  company  unlawfully  declared  the  contract  to  be  abandoned, 
and  relet  it  to  other  persons:  Second,  That  they  prevented  Randel 
from  pursuing  the  due  and  best  mode  of  executing  his  contract,  &c.^ 
Do  these  acts  constitute  a  breach  of  this  covenant?  It  would  seem 
to  me  that  argument  must  come  from  the  other  side  on  this  subject  — 
the  statement  of  the  question  shows  that  no  such  legal  conclusion  fol- 
lows from  these  acts,  as  that  the  company  took  the  time  within  which 
Randel  should  be  required  to  complete  his  contract  to  be  less  than 
four  years.  Does  the  unlawful  determination  of  the  company,  that 
Randel  had  abandoned  his  contract,  amount  to  a  taking  the  time?  &c. 
It  is  a  non  sequitur.  The  declaration  of  abandonment,  suppose  it 
unlawful,  and  the  demurrer  admits  it,  is  not  that  Randel  should  not 
have  four  years,  but  that  he  had  abandoned  his  contract.  Then,  as 
to  the  next  act :  that  Randel  was  prevented  from  entering  upon  lands 
for  the  purpose  of  executing  his  contract;  what  kind  of  connection 
is  there  Ijetween  the  clause  said  to  be  violated  and  the  act  relied  on  as 
the  violation  of  it?  How  does  the  preventing  him  from  going  on  the 
land  to  do  the  work,  necessarily  amount  to  taking  the  time  within 
which  he  shall  do  it  to  be  less  than  four  years?  And  if  the  acts  do 
not  separately  amount,  in  law,  to  a  violation  of  the  contract  they 
cannot  together.  The  question  is  not  here  whether  the  party  so  pre- 
vented has  not  a  remedy  for  such  prevention  (and  if  he  had  none,  it 


'  Kandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  245 

would  not  control  a  construction  of  the  contract)  but  it  is  whether 
this  wrong  is  a  violation  of  the  particular  covenant;  whether  they 
have  such  a  connection  and  relation  as  that  one  can  constitute  a  vio- 
lation of  the  other.  Take  the  strong  case  stated  on  the  record  of  an 
actual  hindrance  or  prevention;  and  unlawful  stoppage  of  the  work 
by  the  company,  is  this  taking  the  time  within  which  it  shall  be  in- 
cumbent on  Eandel  to  complete  the  work  to  be  less  than  four  years  ? 
It  is  not  a  taking  time  to  be  less  —  of  diminishing  time;  but  of  put- 
ting and  end  to  a  contract  and  dismissing  a  contractor.  A  wrong  it 
might  be ;  and  a  remedy  he  would  have ;  but  not  on  this  clause  of 
which  it  is  no  violation.  It  is  a  plain  and  familiar  principle  of  law, 
that  in  any  contract  for  executing  work,  the  party  employing  enters 
into  an  implied  contract  with  the  employed  to  permit  him  to  do  the 
Avork  and  if  he  prevents  him  or  even  obstructs  him,  he  has  his  action 
for  damages — Powell  on  Cont.  251,  2.  And  such  is  John  Randel's 
remedy  on  general  principles  applicable  to  all  contracts  not  upon  any 
covenant  expressly  contained  in  this  contract:  unless  it  be  under  the 
prevention  covenant,  where  a  special  mode  of  redress  and  of  ascer- 
taining damages  is  agreed  upon.  And  this  sufficiently  embraces  the 
case;  but  to  say  that  he  is  entitled  to  damages  for  such  a  wrong  un- 
der the  clause  in  relation  to  time,  is  to  avoid  his  express  stipulation, 
that  for  such  a  wrong  he  will  seek  damages  only  on  the  certificate  of 
the  engineer.     Such  a  construction  would  do  violence  to  the  contract. 

I  come  now  to  the  question  of  waiver  which  grows  out  of  the  repli- 
cation. The  defendant  has  pleaded  to  all  the  breaches  in  the  second 
count,  and  all  in  the  third,  except  the  fifth,  six  and  seventh,  the 
declaration  of  abandonment;  to  which  the  plaintiff  has  replied  certain 
acts  or  facts  which  he  relies  upon  as  being  a  waiver  of  the  right  to  de- 
clare this  contract  to  be  abandoned.  The  matter  relied  upon  as  a 
waiver  is,  that  after  the  making  the  agreement,  Eandel  went  to  work 
and  duly  progressed  with  his  work  until  the  first  of  October,  1825; 
that  from  the  30th  of  July  to  the  first  of  October,  1825,  he  prosecuted 
the  work  under  the  inspection,  with  the  permission,  and  by  and  under 
the  direction  of  the  company;  that  the  company  paid  him  for  work 
done,  in  that  interval,  thirty  thousand  dollars,  thereby  acknowledging 
the  contract  to  be  in  full  force  and  effect :  that  the  work  thus  done  by 
him,  was  less  profitable  than  that  remaining  to  be  done,  &c.  &c. 

The  first  allegation  is  that  Eandel  was  duly  progressing  and  did 
not  neglect  the  work.  Now  I  take  it  in  the  first  place,  that  upon 
this  question,  it  is  of  no  importance  how  that  fact  is  as  the  right  to 
declare  the  contract  abandoned,  depended  not  on  the  fact  of  neglect, 
but  on  the  engineer's  certificate  of  neglect.  The  certificate  is  the 
only  evidence  of  the  fact,  and  Eandel  is  estopped  and  concluded  from 
denying  it.  You  can't  go  beyond  that  certificate  and  enquire  into  its 
propriety;  it  is  to  be  take  as  conclusive  of  the  fact  of  neglect,  at 
least  for  all  the  purposes  of  this  argument.  That  the  certificate  was 
given  is  admitted  by  the  replication.  I  now  ask  whether  the  law 
would  allow  the  company  any  time  for  consideration  before  they 
abandoned  this  contract;  or  must  they  act  instantly  on  the  certificate 
or  give  up  the  power.  Can  it  be  pretended  that  it  was  reasonable 
much  less  legal,  that  this  company  should  act  on  this  momentous 


246  Kandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

question  without  deliberation,  without  reflection  ?  Yet  the  other  side 
are  driven  to  this  position  in  contending  for  the  waiver.  The  lan- 
guage of  the  contract  shows  that  on  the  receipt  of  the  certificate  the 
company  were  to  have  the  discretion  to  abandon  or  not — may  de- 
clare the  contract  abandoned;  and  this  discretion  necessarily  implies 
the  allowance  of  such  time  for  consideration  as  might  be  proper  for 
its  prudent  use.  They  were  not  called  on  to  act  instantly,  but  reason- 
able time  proportioned  to  the  discretion  and  the  magnitude  of  the 
question,  was  to  be  allowed.  Then  is  the  time  here  taken  too  long? 
Two  months.  Upon  what  principle  can  the  court  decide  that  it  was 
too  long?  Looking  at  the  nature  of  the  work,  the  magnitude  of  the 
question,  and  the  importance  of  its  results,  we  submit  that  two  months 
was  not  an  unreasonable  time  for  deliberation.  And  if  the  company 
were  authorized  to  take  this  time  for  consideration,  then  all  the  acts 
complained  of  are  justifiable  and  proper,  the  necessary  consequences 
of  this  state  of  deliberation.  Until  actual  abandonment  declared  the 
contract  continued  in  force ;  Randel  was  bound  to  go  on  with  the  work 
and  the  company  to  pay  —  so  that  all  orders  given  and  payments  made, 
are  perfectly  consistent  with  a  subsisting  power  to  declare  the  con- 
tract abandoned  on  the  old  certificate,  if  the  time  allowed  for  con- 
sidering that  certificate  was  not  unreasonably  extended.  The  want  of 
notice  to  Randel,  and  the  unprofitableness  of  the  work,  do  not  vary 
the  case.  The  one  did  not  change  the  powers  or  the  discretion  of  the 
company,  and  the  other  was  a  necessary  consequence  of  the  contract. 
It  returns  to  the  question  of  reasonable  time.  Will  they  say  the  con- 
duct of  the  company  was  fraudulent?  No  fraud  is  alledged  on  the 
record,  and  the  court  will  not,  as  the  law  does  not,  presume  fraud. 

It  is  unnnecessary  for  me  to  anticipate  authorities  but  I  have  exam- 
ined the  books  and  find  little  on  the  subject  of  waiver  except  cases 
of  landlord  and  tenant  which  are  peculiar  in  themselves  and  stand 
on  their  own  ground.  They  can  have  no  analogy  to  this  case.  The 
contract  of  landlord  and  tenant  is  governed  by  principles  applicable 
only  to  that  relation.  For  instance,  though  a  lease  be  expresslv  for 
five  years  and  no  longer,  the  tenant  may  hold  longer,  unless  the  land- 
lord gives  him  three  months  notice  to  quit.  Take  the  case  of  a  co- 
venant by  a  tenant  not  to  assign  the  term ;  the  assignment  itself  cre- 
ates a  forfeiture ;  but  if  the  landlord  with  notice  of  the  forfeiture  ac- 
cept rent  it  is  a  waiver ;  it  re-establishes  the  relation  of  landlord  and 
tenant.  The  assignment  creates  the  forfeiture,  the  subsequent  con- 
duct of  the  landlord  dispenses  with  it.  Here  the  certificate  of 
Wright  neither  put  an  end  to  this  contract,  nor  created  any  forfei- 
ture of  it ;  the  parties  remained  in  statu  quo ;  until  an  actual  declara- 
tion of  abandonment  the  contract  was  not  forfeited.  There  is  there- 
fore no  parallel  or  similarity  between  the  cases.  If  after  this  certi- 
ficate was  followed  up  by  the  declaration  the  company  had  employed 
Randel,  given  him  orders,  and  paid  him  as  usual,  it  might,  with 
some  force,  be  relied  on  as  a  waiver  of  the  forfeiture,  but  before  such 
abandonment,  all  these  acts  are  the  necessarv  and  proper  results  of 
a  coniinuing  contract,  and  can  afford  no  evidence  of  a  waiver.  3  Co. 
Rep.  64,  5.     Pennant's  case.  10  East,  13. 

It  remains  only  for  me  to  notice  the  special  demurrers  joined  on 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  2-47' 

the  pleadings  to  the  first  and  second  breaches  of  the  second  count; 
iind  I  shall  do  so  briefl}^,  merely  calling  the  attention  of  the  court  to 
ihem.  The  breaches  are  assigned  on  that  clause  of  the  contract  which 
provides  for  the  inspecting  and  estimating  the  work.  The  plea  al- 
]  edges  that  the  company  appointed  Benjamin  Wright  engineer,  and 
selected  him  as  the  inspector  of  works,  and  that  he  continued  to  be 
such  engineer  and  inspector.  The  replication  traverses  the  facts  and 
(}specially  traverses  the  time  of  the  appointment  of  Wright  as  engi- 
neer and  inspector,  and  for  this  cause  we  have  demurred.  The  pre- 
cise time  of  the  appointment  is  immaterial,  it  is  alledged  under  a 
videlicet;  neither  material  in  itself,  nor  made  so  by  the  manner  of 
pleading  it.  The  proof  of  the  appointment  at  any  time  before  would 
support  the  allegation;  yet  we  could  not  take  issue  on  a  replication 
putting  the  precise  time  in  issue,  and  we  had  to  demur.  The  party 
is  not  entitled  to  traverse  immaterial  matter. 

If  the  traverse  includes  time  when  not  material  it  is  ill.  1  Chitty's 
Plead.  42G:     3  Saund.  Rep.  318,  19:    Note  6.     Gould's  Plead.  405. 

Mr.  Clayton,  for  plaintiff. 

The  contract  between  these  parties  may  be  divided  into  two  classes 
of  covenants;  first,  covenants  to  pay  for  work  done;  and  second, 
other  covenants  than  those  to  pay  for  work  done.  This  is  not  an 
arbitrary  division,  but  such  as  the  contract  itself  makes.  In  the 
abandonment  clause  the  language  is,  that  such  determination  "  shall 
altogether  exonerate  the  said  party  of  the  second  part,  from  every 
obligation  imposed  on  them  by  the  said  contract,  except  to  pay,  as 
aforesaid,  for  work  already  done.''  There  are  then  other  obligations 
in  this  contract  besides  those  to  pay  for  work  done:  and  obligation 
arisirg  from  a  sealed  instrument  means  covenant.  1  Co.  Litt.  172, 
a;  1  Binn.  254;  State  use  of  Jenkins  vs.  Hamilton's  adm'r.  C.  G.  P. 
Kent  county:  2  Mod.  87.  The  clause  declared  on  in  the  second 
count,  sets  out  the  agreement  of  the  company  to  pay  Eandel  certain 
specified  sums  for  work  done.  This  is  a  covenant  to  pay.  The  residue 
of  the  paragraph  provides  for  retaining  ten  per  cent,  until  the  work 
is  done,  which  is  then  to  be  paid  over.  This  also  is  a  covenant  of  the 
same  class.  So  of  the  third  and  fourth  clauses  of  the  contract.  It  con- 
tains six  covenants  to  pay  for  work.  What  are  the  covenants  other 
than  for  the  payment  of  work.  There  are  to  in  the  clause  declared 
on  in  the  first  and  second  breaches  of  the  second  count,  being  the 
covenants  for  inspecting  the  works  during  their  progress  and  estimat- 
ing the  amount  done.  The  counsel  considered  these  together,  and  I 
will  pursue  the  same  course.  The  prevention  covenant,  covenants  for 
semi-monthly  and  final  certificates,  and  the  covenant  to  allow  Eandel 
four  years  to  do  the  work  in,  are  other  examples  of  these  obligations 
other  than  to  pay  for  work  done. 

Our  learned  opponents  argue  all  these  covenants  into  matters  of 
reference,  and  otherwise  get  around  them,  but  I  ask,  on  their  princi- 
ples, where  are  these  other  obligations  besides  those  to  pay  for  work 
done?  I  point  them  to  the  covenant  that  on  the  completion  of  the 
work,  the  company's  engineer  shall  grant  to  Eandel  a  final  certifi- 
cate of  the  amount  of  work  done,  and  I  ask  if  it  will  be  gravely  con- 
tended that  this  also  is  a  reference  ? — that  Eandel  after  doing  work  to 


248  Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company. 

the  amount  of  millions  has  referred  it  to  an  agent  of  the  company  to 
decide  whether  he  shall  have  one  cent.  Without  the  certificate  he 
can  get  nothing,  and  the  company  are  not  bound  that  their  agent 
shall  give  a  certificate  for  any  thing.  This  is  the  result  of  the  argu- 
ment; and  if  this  be  not  the  covenant  of  the  company  that  a  cer- 
tificate shall  be  given  it  rests  in  the  power  of  the  company  to  pay  or 
not  to  pay  even  after  the  work  is  finished.  Mr.  Frame,  pressed  by 
the  necessity  of  finding  other  covenants  than  those  to  pay  for  work 
done,  attempted  to  point  out  two,  both  of  which  are  manifestly  to 
pay  for  work.  But  the  broad  terms  of  this  clause  are  not  to  be  sa- 
tisfied by  hunting  up  a  possible  obligation  in  some  corner  of  the  con- 
tract ;  the  expression  is  broad  and  general,  all  obligations. 

In  taking  up  the  contract  and  looking  for  these  other  obligations, 
the  first  one  that  occurs  is  the  provision,  that  in  case  Randel  should, 
from  the  default  of  the  compan}'^,  be  prevented  from  pursuing  the 
due  and  best  mode  of  executing  his  contract,  &c.,  the  pecuniary 
damage  shall  be  certified  by  the  engineer  of  the  company.  How  is 
this  clause  introduced?  It  is  agreed  as  aforesaid.  What  is  the 
agreement  immediately  preceding?  A  covenant  by  the  company  to 
pay  the  ten  per  cent.,  and  also  a  covenant  by  the  company  that  the 
engineer  should  give  a  final  certificate.  If  there  be  any  doubt  on  the 
words  of  an  agreement  they  are  always  referred  to  the  proper  party. 
Powell  on  Cont.  241,  2,  3,  4.  Even  where  the  language  is  that  of 
the  covenantee,  they  will  be  thrown  upon  the  other  party,  if  he  as- 
sents and  the  intent  so  requires;  much  more  where  both  parties  join 
in  the  words.  The  law  looks,  .not  to  who  speaks  the  words,  but  to 
the  intent  of  the  parties,  and  if  the  party  who  ought  to  be  bound, 
assents  to  the  words,  it  shall  be  construed  his  covenant.  In  con- 
tracts it  is  not  material  which  party  speaks  the  words  if  the  other 
agrees.  Words  spoken  by  one  may  enure  as  if  spoken  by  the  other. 
Chitty  Cont.  22;  1  Plowd.  141;  Browning  vs.  Beston;  Johns.  Cases  in 
error,  327. 

How  stands  this  covenant  ?  Do  you,  from  the  language,  gather  that 
the  company  agreed  that  their  engineer  should  certify?  If  so  it  is  a 
covenant.  The  tei-ms  of  a  contract  are  to  be  used  in  their  ordinary 
and  popular  sense.  The  rules  is  to  do  justice  between  the  parties  by 
carrying  into  effect  their  meaning  and  intent.  4  East  136;  1  Chitty 
Cont.  19. 

Is  justice  to  be  effected  by  the  construction  of  the  other  side?  Was 
it,  or  not,  the  understanding  that  Randel  should  do  the  work  and  the 
company  pay  him  for  it:  if  so,  it  is  idle  to  contend  that  Randel  re- 
ferred it  to  Wright,  or  any  one  else,  to  say  whether  he  should  be  paid 
or  not.  Do  you  doubt  that  it  was  the  understanding  that  he  should  be 
permitted  to  go  on  with  the  work  without  molestation  or  hindrance 
for  four  years,  he  exercising  due  diligence  in  the  mean  time ;  if  such 
was  the  understanding,  they  have  covenanted  to  this  effect,  and  broken 
their  covenant  by  driving  him  off  within  the  four  years. 

The  books  show  numerous  cases  in  which  the  principle  of  con- 
struction to  carry  into  effect  the  intent  and  meaning  of  the  parties  has 
been  adopted  in  its  fullest  extent.  As  where  the  father  signs  the  ar- 
ticles of  apprenticeship  of  his  son  though  the  covenants  are  all  those 
of  the  son  and  master,  the  obligations  proceed  from  the  son  and  the 


Randel,  Jun.  vs.  Ches.  &  Del;  Canal  Company.  249 

words  are  his  —  yet  looking  at  the  intent  of  the  parties  they  have 
been  held  also  to  be  the  covenants  of  the  father.  Dough  518;  5  Cowen 
170;  8  Mod.  190. 

An  agreement  that  B.  should  pay  A.  a  sum  of  money  for  his  land 
is  a  covenant  by  A.  to  convey  the  land.  Agreed  is  the  word  of 
both,  and  the  court  looks  to  the  intent  and  does  justice.  A  cove- 
nant to  supply  lime  at  the  season  of  burning  construed  to  be  a  cove- 
nant to  burn  and  supply  burnt  lime,  for  such  the  intent.  1  Saund. 
320;  1  Leving.  274;  1  Sidf.  423;  Z  B.  <&  Aid.  487;  1  Wh.  Selw. 
387;  6  Bi7ig.  644;  ^  B.  &  Ores.  505;  2  Mod.  266;  Otway  & 
Holdip. 

In  Otway  vs.  Holdips  the  court  raised  a  covenant  by  construction 
because  otherwise  the  party  bound  could  avoid  all  liability.  Here, 
if  this  be  not  a  covenant  by  the  company  they  cpuld  deprive  Randel 
of  all  remedy.  Mr.  Frame  contended  that  this  engineer  was  an  in- 
different person.  Look  at  the  contract  and  see  what  manner  of  in- 
different person  this  is.  He  is  called  the  engineer  of  the  company: 
the  engineer  employed  by  the  company;  their  engineer.  They  could 
not  speak  of  their  servant  in  terms  more  strongly  showing  his  obli- 
gation and  subservience  to  them.  He  is  their  man ;  under  their  pow- 
er, and  responsible  to  them.  And  yet  he  is  called  an  indifferent 
person.  The  duty  was  not  even  assigned  to  their  engineer  in  chief 
who  must  be  a  man  of  science,  and  might  be  a  man  of  character  and 
responsibility,  but  it  is  the  engineer  for  the  time  being,  or  resident 
engineer,  frequently  a  common  surveyor  or  subordinate  engineer, 
who  is  put  in  and  out  at  the  pleasure  of  the  company.  Are  they 
not,  according  to  reasonable  principles  of  construction,  answerable; 
under  their  covenant,  for  this  hireling  servant?  The  narr  alledges 
that  Randel  did  work  to  the  amount  of  $250,000,  which  the  engi- 
neer well  knew  but  would  not  certify  for;  yet  it  is  contended  that 
the  company  are  not  liable  for  this  neglect  of  their  servant  though 
otherwise  Randel  is  wholly  without  relief,  and  though  it  is  agreed 
in  the  contract  that  this  servant  shall  inspect  the  works  and  estimate 
and  certify  the  amount.  It  was  intimated  last  term  that  there  might 
be  a  remedy  for  Randel  in  equity,  though  not  at  law.  The  rules 
of  construction  of  covenants  are  the  same  at  law  as  in  equity.  If 
then  it  be  admitted  that  we  have  a  remedy  on  this  clause  in  equity 
we  have  it  here.  1  Saund.  Rep.  233,  n.  1;  14  Vin.  Ab.  Tit.  Intent. 
Fearne  on  Rem.  220,  4:th  Ed.;  8  Eng.  Com.  Law  Rep.  368 ;  Frazer,  &c. 
vs.  Houston,  &c.;  1  Sidf.  266;  2  Modern  292;  Chitty  Cont.  18,  19; 
1  Fonh.  Eg.  65;  3  Ves.  sen.  692;  2  Burr  1108;  3  Blac.  Com.  438;  1 
Leon  324;  2  do.  122. 

I  crave  attention  to  the  distinction  in  this  contract  between  the 
language  of  covenant  and  of  arbitration.  The  contract  is  very  ar- 
fully  drawn.  It  cannot  be  denied  that  the  draftsman  knew  perfectly 
well  how  to  appoint  an  arbitrator  as  is  done  expressly  in  the  conclud- 
ing clause  referring  disputes  to  the  engineer  in  chief,  as  a  judge 
and  umpire  between  the  parties.  And  also  in  another  clause  where 
they  wish  to  refer  a  matter  to  the  engineer  for  the  time  being  it  is 
done  so  expressly,  to  him  as  umpire.     They  knew  then  how  to  make 

32 


250  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

an  arbitrator;  they  have  done  it  rightly  where  they  intended  to  do 
it ;  yet  where  they  have  not  done  it  the  court  is  called  upon  to  infer  a 
reference  which  shall  deprive  one  party  of  all  the  remedy  he  has  un- 
der the  contract  and  absolve  the  other  from  all  liability,  even  the 
liability  to  pay  for  the  work  actually  done.  The  language  of  the 
reference  is  that  the  engineer  may  do  thus  and  so;  he  may  certify 
the  neglect  of  Randel ;  it  is  left  to  his  discretion ;  the  language  of  the 
covenants  is  that  he  shall  be  the  inspector  and  shall  estimate  the 
work,  and  shall  certify  damages  for  deviations  and  prevention,  &c. 
Again,  the  argument  that  this  is  a  reference  and  not  a  covenant 
makes  a  double  reference  of  the  same  subject  matter  for  if  it  was  in- 
tended to  refer  these  matters  to  the  engineer  it  is  covered  by  the 
last  cause  of  the  contract.  What  wrong  can  be  done  to  the  company 
by  construing  this  to  be  a  covenant?  If  a  covenant  the  company 
have  still  an  immense  advantage  over  Randel.  They  are  bound  to 
appoint  an  engineer  and  inspector,  and  to  make  him  inspect  and  es- 
timate and  certify;  but  here  their  obligation  ceases.  Randel  is  bound 
by  the  certificate,  however  unjust;  and  it  would  be  monstrous  in- 
justice to  say,  by  construing  this  a  reference,  that  the  company  were 
not  even  bound  to  give  him  that.  On  general  principles  the  master 
is  liable  civiliter  for  the  acts  and  conduct  of  his  servant  within  the 
scope  of  his  authority.  The  construction  we  contend  for  would  hold 
the  company  responsible  only  as  the  general  law  considers  them  re- 
sponsible.   Bac.  Ah.  Master  &  Servant.  R. 

Establishing  then  that  there  is  a  covenant  on  the  part  of  the  com- 
pany that  their  engineer  should  inspect  the  works  during  their  pro- 
gress and  estimate  and  certify  the  amount  done;  and  that  there  is 
also  a  covenant  by  the  company  that,  in  case  Randel  should  be  pre- 
vented by  any  default  of  theirs  from  pursuing  the  due  and  best  mode 
of  executing  his  contract,  their  engineer  should  certify  the  dama- 
ges arising  from  such  prevention,  I  proceed  to  the  breaches : — 

The  third  breach,  second  count,  alledges  that  Randel  was  preven- 
ted, &c.  on  divers  days  and  times ;  that  "the  pecuniary  damage  amoun- 
ted to  $256,000  (all  of  which  is  confessed  by  the  plea  and  demurrer) 
yet  that  the  said  damage  has  not  been  certified,  (which  is  also  con- 
fessed.) The  fourth  breach  of  the  second  count  is  similar,  with  the 
additional  averment  that  the  engineer  knew  of  the  damages.  (This 
also  is  confessed  by  the  pleadings.)  The  other  breaches  are  similar 
varying  only  as  to  time. 

How  stand  we  then  on  the  demurrers?  The  prevention,  and  dam- 
age and  neglect  to  certify,  all  admitted;  a  vrrong  confessed;  a  duty 
omitted ;  a  covenant  broken. 

So  also  is  the  covenant  to  inspect  the  works  and  estimate  the 
amount  of  excavation  and  embankment  clearly  broken,  and  all  the 
facts  necessary  to  establish  the  breach  confessed  by  the  pleadings. 

I  recur  to  the  principle  that  the  law  refers  the  obligation  to  him 
who  is  bound  to  do  the  act.  It  was  the  duty  of  the  company  to 
have  the  work  inspected  and  measured.  Mr.  Frame  argued  that 
this  clause  was  chiefly  or  entirely  for  the  benefit  of  the  company. 
Wonderful !  Without  the  inspection  Randel  couJd  not  receive  one 
cent  for  his  work;  the  provision  was  wholly  for  the  purpose  of  ar- 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  251 

riving  at  data  for  his  payment;  yet  he  has  no  interest  in  it!  The 
contract  might  also  be  declared  abandoned  for  his  neglect;  was  he  not 
interested  in  the  measurement?  When  able  counsel  resort  to  such  ar- 
guments it  manifests  the  difficulty  of  their  case.  The  learned  gen- 
tleman argued  also  from  the  words  "  to  prevent  misunderstandings 
and  disputes  "  that  this  was  a  reference.  Look  at  the  language  of 
the  last  clause  which  we  agree  is  a  reference;  it  is  to  prevent  litiga- 
tion in  case  of  misunderstandings  and  disputes  that  an  arbitrator  i8 
appointed;  and  this  is  the  business  of  an  arbitrator  to  settle,  not  to 
prevent,  disputes.  I  seize  on  these  words  to  show  that  it  cannot  be 
a  reference.  How  were  disputes  to  be  prevented?  Not  by  appoint- 
ing an  arbitrator,  but  by  obliging  the  company  to  make  their  agent 
do  his  duty  in  specting  and  measuring  and  binding  Randel  to  abide 
by  this  measurement.  Here  no  dispute  could  arise.  Randel  might 
be  wronged  by  the  certificate,  but  his  mouth  was  closed.  A  plea  that 
the  company's  agent  had  estimated  and  certified  this  work  would  con- 
clude the  whole  matter  forever. 

I  now  come  to  the  covenant  not  to  take  the  time  within  which 
Randel  should  be  compelled  to  do  this  work  to  be  less  than  four 
years.  A  contract  must  be  so  constructed  as  to  give  it  some  mean- 
ing. Chitty  C.  19,  20.  The  construction  is  to  be  on  the  whole  in- 
strument. The  company  are  authorized  to  declare  the  contract  aban- 
doned for  negligence  of  the  contractor:  negligence,  what  is  it?  The 
want  of  due  diligence;  and  this  diligence  must  be  taken  in  reference 
to  time.  Without  any  stipulation  on  the  subject  Randel  would  have 
been  allowed  a  reasonable  time  to  finish  the  work,  but  here  the  con- 
tract ascertains  the  time  and  stipulates  for  the  allowance  of  four  years. 
The  company  covenant  not  to  take  the  time  to  be  less  than  four  years, 
that  is,  to  allow  four  years.  But  say  they,  that  is  inconsistent  with 
the  power  of  declaring  the  contract  abandoned  within  the  four  years. 
Construe  the  whole  instrument  together  and  they  both  stand.  The 
company  were  bound  to  allow  four  years,  unless,  judging  in  reference 
to  that  time,  the  engineer  should  certify  to  them  that  the  contractor 
unreasonably  neglected  his  contract  upon  which  certificate  they  might 
declare  an  abandonment  within  four  years.  We  show  a  breach  of  this 
time  covenant  whenever  we  show  that  Randel  was  progressing  with 
such  diligence  as  to  complete  the  canal  in  four  years  and  that  the 
company  unlawfully  drove  him  off. 

There  is  also  compatability  between  the  clause  allowing  four  years 
to  complete  the  work  and  the  prevention  clause.  A  prevention  may 
not  amount  to  a  total  exclusion,  and  remark  it  is  only  prevention 
from  pursuing  the  due  and  best  mode :  the  one  regards  interruptions 
in  the  progress  of  the  work  the  other  a  total  suspension  of  the  work 
itself.  There  might  be  many  violations  of  the  prevention  clause  with- 
out amounting  to  a  breach  of  the  time  covenant. 

It  may  be  insisted,  as  it  was  last  term,  that  this  clause  was  design- 
ed merely  as  a  defence  to  Randel  in  case  the  company  should  sue  him 
for  not  completing  the  work  earlier.  Sue  him,  where?  They  con- 
templated no  suits;  they  withdrew  these  matters  from  courts  and 
juries,  shunned  the  tribunals  of  the  country  as  they  still  seek  to 
ghun  them,  and  took  the  power  of  decision  into  their  own  hands. 


252  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

If  Randel  did  not  progress  diligently  he  was  not  to  be  sued,  but 
Wright  or  some  other  tool  of  the  company  was  to  step  in  and  certify 
the  neglect  and  he  was  to  be  driven  off  at  their  will.  It  was  not  then 
meant  as  a  defence  to  any  suit  but  a  measure  of  time  in  reference  to 
his  diligence  and  a  covenant  to  allow  time. 

Are  the  breaches  of  this  covenant  well  assigned  !*  They  are  the  sixth  of 
the  second  count,  and  the  tenth,  eleventh,  twelfth,  thirteenth  and  four- 
teenth breaches  of  the  third  count.  The  fourteenth  is  admitted  by  Mr. 
Frame  to  be  well  assigned ;  it  is  like  the  seventh  count  on  which  judg- 
ment has  been  given  for  plff.  The  other  breaches  recite  the  facts  from 
which  it  is  concluded  that  the  covenant  is  broken.  The  first  breach 
contains  two  averments;  that  the  company  unlawfully  abandoned  the 
contract  and  prevented  Randel  from  entering  upon  lands  to  execute 
his  contract,  and  so  took  the  time,  &o.  Mr.  Frame  seemed  to  treat 
the  declaration  of  abandonment  as  another  abstraction  tnot  affecting 
Randel  nor  having  any  relation  to  the  taking  the  time;  but  the  con- 
sequences of  that  declaration,  which  are  stated,  did  affect  Rondel;  it 
stopt  his  pay ;  drove  him  off ;  prevented  him  from  going  on  with  the 
work.  The  breach  does  not  stop  at  the  mere  declaration;  it  relies  on 
the  driving  him  off  and  states  the  declaration  of  abandonment  as  the 
means.  And  this  is  a  breach  of  the  covenant.  The  tenth  breach  adds 
the  reletting  the  contract  to  Clement,  Blackstock,  Vanslyke  and 
Dexter;  the  eleventh  to  Clement,  Blackstock  and  Vanslyke;  the 
twelfth  states  a  reletting  generally,  and  the  thirteenth  traverses  the 
abandonment  generally  and  states  the  reletting.  I  submit  that  a 
violation  of  this  covenant  is  well  assigned  in  all  these  breaches. 

I  come  now  to  consider  the  plea  of  abandonment  and  the  replica- 
tion of  waiver.    It  is  the  third  plea  and  applies  to  seventeen  breaches. 

The  plea  is  that  Benjamin  Wright,  the  engineer  of  the  company, 
being  of  opinion  that  Randel  unreasonably  neglected  to  prosecute  the 
work,  did,  on  the  30th  July,  1825,  certify  that  opinion  to  the  com- 
pany, and  that  afterwards,  to  wit:  on  the  30th  September,  1825,  the 
company  did,  on  said  certificate,  declare  the  contract  abandoned,  of 
which  Randel  had  notice  on  the  first  of  October,  by  means  whereof 
the  said  company  were  exonerated  from  every  obligation  imposed  by 
said  contract,  except,  &c. 

The  plea  is  a  plea  of  confession  and  avoidance.  Whatever  is  ma- 
terially alledged  in  the  breach,  and  not  denied  by  the  plea,  is  ad- 
mitted. This  plea  admits  that  Randel  was  duly  progressing,  and 
did  not  neglect  it  in  the  interval  between  the  30th  July  and  1st  Oc- 
tober; no  notice  to  Randel  of  the  certificate  is  averred  in  the  plea 
until  sixty-two  days  after  it  was  given,  one-twenty-fourth  of  the 
whole  time  he  was  allowed  to  do  the  work:  the  question  then  is  was 
the  abandonment  legal?  The  certificate  they  say  is  not  to  be  ques- 
tioned, but  the  abandonment  on  it  must  be  legal  or  the  whole  is  void. 
This  certificate,  as  was  well  said  by  Mr.  Frame,  made  the  contract 
not  void,  but  voidable  only.  The  contract  is,  that  on  the  certificate 
being  given,  the  company  may  declare  an  abandonment,  not  that 
they  shall;  it  is  then  after  certificate,  a  voidable  and  not  a  void  con- 
tract. Such  a  contract  may  be  affirmed  and  the  power  to  avoid  it 
waived.     Mr.  Frame  said  there  were  some  cases  of  leases,   copy- 


I 


I 


I 


I 


Kandel,  Jux.  vs.  Ches.  &  Del.  Canal  Company.  253 

holds,  &c.,  where  a  forfeited  contract  might  be  waived  or  re-estab- 
lished, but  he  said  it  was  very  different  with  a  contract  not  actually 
forfeited.;  Precisely  the  reverse  it  true;  and  I  trust  we  shall  show 
a  few  other  cases  than  those  depending  on  the  relation  of  landlord 
and  tenant,  or  on  any  peculiar  principles. 

A  lease  may  be  set  up  by  waiver  while  it  is  voidable,  but  not  after 
it  is  avoided.  If  there  be  a  clause  of  forfeiture  for  non-payment  of 
rent,  if  the  rent  be  not  paid  the  contract  becomes  voidable,  but  not 
void  until  entry.  Before  entry  the  contract  may  be  set  up  and  the 
forfeiture  waived  by  slight  acts,  because  the  law  leans  against  forfeit- 
ures. If  feoffor  brings  assize  after  condition  broken,  it  is  a  waiver 
of  the  forfeiture.  Acceptance,  of  rent  after  notice  to  quit,  is  a  waiver 
of  the  notice.  Acceptance  of  rent,  after  the  lease  is  avoided^  will 
not  set  it  up,  but  it  will  where  the  lease  is  voidable  only.  1  Saund. 
22;  a  note  3;  1  do.  1042;  2  Stran.  297;  1  Saund.  287,  h.  n.  16; 
Go.  Litt.  201,  h;  202,  a;  Harg.  n.  3;  Co.  Litt.  sec.  341,  p.  211,  b; 
G  T.  Rep.  219;  Co.  Litt.  215,  a  and  note  1;  2  T.  Rep.  430;  1  H.  Bl. 
311 ;  4  5.  fg  Cres.  606. 

The  replication  shows  that  Randel  worked  to  the  amount  of  thirty 
thousand  dollars,  after  the  certificate,  one -twenty-fourth  of  the  whole 
time,  that  they  paid  him  and  treated  with  him  all  that  time,  As  if  no 
certificate  had  been  given;  they  thereby  acknowledged  the  contract  to 
be  in  full  force.  The  demurrer  admits  these  facts  and  they  amount 
to  a  waiver.  The  payment  under  the  contract,  and  the  acknowledg- 
ment of  its  being  in  full  force,  is  not  a  conclusion  or  inference,  but  a 
traversable  fact. 

Acceptance  of  rent,  with  notice,  after  condition  broken,  and  be- 
fore entry,  is  a  waiver  of  the  forfeiture.  In  case  of  a  continuing 
breach  acceptance  of  rent  is  no  waiver.  If  it  appeared  on  the  record 
that  Eandel  continued  to  neglect  after  the  certificate  there  might  be 
no  waiver,  but  the  contrary  is  stated  and  admitted.  Do  the  deci- 
sions, in  the  cases  cited,  go  upon  any  reason  peculiar  to  leases?  The 
analogy  is  perfect  throughout,  and  there  can  be  no  reason  why  a 
waiver  in  the  one  case,  should  not  be  in  the  other.  The  parties 
agree  in  those  cases  that  in  a  certain  event  the  lessor  shall  have  it  in 
his  power  to  declare  the  lease  forfeited,  or  to  forfeit  it  by  entry,  &c., 
is  it  not  so  in  this  contract?  If  the  forfeiture  can  be  waived  in  the 
one  case,  why  not  in  the  other?  16  East.  53;  3  8alh.  3;  Cowp.  804; 
1  Leon.  262;  Cro.  Jac.  398;  7  Petersd.  Ill,  tit.  covt.  waiver;  9  B.  £ 
Crest.  396. 

But  the  law  on  this  subject  is  not  confined  to  leases:  it  is  in  the 
very  nature  of  a  voidable  contract  that  it  may  be  reaffirmed  as  well 
as  avoided.  The  debt  of  an  infant,  though  voidable,  may  be  set  upj 
a  debt  barred  by  limitation  may  be  reaffirmed;  a  forfeiture  created 
by  the  statute  of  frauds  may  be  waived  by  payment  or  part  pay- 
ment. And  if  once  reaffirmed  it  is  not  then  to  be  avoided  at  the  will 
of  the  party  who  waives  the  forfeiture.  Any  irregularity  creating 
a  forfeiture  or  loss  of  a  man's  rights,  may  be  waived,  as  appearance 
to  an  irregular  writ,  payment  or  admission  of  a  debt,  &c.  8  Com. 
Law  Rep.  270.  So  in  cases  of  insurance  the  insured  must  abandon 
and  give  notice  to  the  underwriter  or  he  waives  his  right  to  abandon. 
The  insured  must  elect  whether  he  will  abandon  as  soon  as  he  re- 


254  Bandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

ceives  notice  of  the  loss  and  notify  the  insurer  within  a  reasonable 
time.  "  This  is  a  rule  not  peculiar  to  coinmercial  law,  but  is  in 
analog}'  to  the  principles  of  the  common  law."  Marshall  on  In- 
surance, 509.  We  say  here  that  on  the  certificate  being  given,  the 
company  M-ere  to  elect  whether  they  would  forfeit  the  contract  by  a 
declaration  and  notice  to  Randel  within  a  reasonable  time.  Was 
two  months  a  reasonable  time?  Was  it  reasonable  that  they  should 
keep  him  at  work  at  reduced  prices  long  enough  to  do  one-twenty- 
lourth  of  the  whole  work.  "VS^at  would  be  reasonable  time?  Could 
they  put  this  certificate  up  until  Eandel  had  nearly  completed  the 
work,  and  then  spring  upon  him  with  a  declaration  of  abandonment? 
Again :  What  is  the  principle  in  relation  to  the  non-presentment  of 
a  bill  or  note?  Its  consequences  may  be  waived  by  part  payment,  or 
promise  with  notice  of  the  default.  So  neglect  to  give  notice  to  the 
indorser  releases  him,  but  it  may  be  waived.  So  in  case  of  mort- 
gage forfeited  the  mortgagee  waives  the  forfeiture,  by  accepting  pay- 
ment of  part.  So  in  case  of  a  bail  bond  forfeited,  acceptance  of  ap- 
j)earance  is  a  release  of  the  bail.  To  all  instruments  known  to  the 
law,  on  which  a  forfeiture  may  arise  a  waiver  may  occur.  Chitty 
on  hills,  319,  302,  309;  Strange;  6  East;  Powell  on  Mortgages,  1077, 
8,  18,  19,  421,  422;  3  Taunt.  78. 

This  is  not  a  case  of  merely  lying  by  and  doing  no  act  to  waive 
this  right  of  abandoning  the  contract,  the  whole  conduct  of  the  com- 
pany towards  Randel  after  the  certificate  reaffirmed  the  contract. 
The  contract  is  that  the  company  shall  have  the  power  to  declare  on 
abandonment  on  the  certificate ;  that  is,  on  occasion  of  the  certificate, 
when  it  is  given  or  within  a  reasonable  time  after.  Can  an  abandon- 
ment sixty-two  days  after  the  certificate,  be  said  to  be  on  the  cer- 
tificate? 

If  this  plea  be  bad  to  any  one  of  the  seventeen  breaches  it  is  bad 
to  all.     (Admitted  by  defendants  counsel.) 

As  to  the  special  demurrers: 

I  admit  that  where  time  is  immaterial,  it  need  not  be  traversed,  and 
cannot  be.  The  question  is  whether  the  time  is  material.  They 
were  bound  to  show  when  the  inspector  was  appointed,  for  they  were 
bound  tQ  have  one  all  the  time.  The  time  of  the  appointmeni  then 
is  material.  But  I  pass  by  this.  The  demurrer  runs  back  on  the 
first  faulty  pleading,  and  there  plea  is  bad.  The  breach  is  that  the 
company  did  not  appoint  an  inspector,  and  that  the  work  was  not 
inspected  and  measured,  the  plea  merely  sets  out  the  appointment 
of  the  inspector.  It  is  therefore  bad  and  settles  the  question  as  to 
the  demurrers  to  the  fiith  plea. 

The  case  cited  from  10  East,  was  a  conditional  promise  that  the 
tenant  might  remain  unless  the  landlord  sold.  He  did  sell  and  it 
was  held  no  waiver  of  the  previous  notice  to  quit.  It  does  not,  in 
the  least,  impugn  the  authority  of  our  cases.  Pennant's  case  is  law, 
and  the  other  side  may  have  the  full  advantage  of  it.-  I  intended  to 
cite  it,  and  would  still,  but  for  the  lateness  of  the  hour.  It  is  preg- 
nant with  instruction  on  the  subject  of  waiver. 

Charles  J.  Ingersoll,  for  plaintiff. 

In  former  days,  before  the  light  of  liberty  had  shed  its  influence 
to  the  extent  of  establishing  independent  judiciaries  and  juries  to  try 


Kandel,  .Tun.  vs.  Ches.  &  Del.  Canal  Company.  255 

the  rights  of  parties,  the  world  was  ruled  and  over-ruled  by  the  des- 
potic sway  of  the  nobility,  a  privileged  class  of  which  the  only  rep- 
resentative that  has  come  down  to  these  enlightened  times,  is  the 
existence  oX  certain  irresponsible  bodies  called  corporations.  Ten 
years  ago,  a  period  longer  than  the  usual  computation  of  human  life, 
an  artificial  being  of  this  character,  called  the  Chesapeake  and  Dela- 
ware Canal  Company,  entered  into  an  arrangement  with  John  Kan- 
del, jun.,  in  relation  to  digging  a  canal;  and,  in  the  fooiish  confidence 
of  an  honest  man,  our  unfortunate  client  signed  a  contract  with  this 
(;ompany  that  gave  them  almost  unlimited  powers  over  him.  He 
agreed  to  put  his  work  and  himself  under  the  supervision  and  in- 
spection of  an  agent  of  the  company;  to  be  paid  according  to  his 
certificates  for  work  done,  and  to  be  remunerated  in  damages  by  the 
same  rule  for  preventions,  and  deviations,  extra  labour  and  all  the 
impediments  which  might  arise  in  the  course  of  the  work  or  which 
jnight  be  thro^vn  in  his  way  by  the  company  themselves;  and  finally, 
he  agreed  that  whenever  the  aforesaid  agent  of  the  company 
sliould  certify  that  he  unreasonably  neglected  to  prosecute  his  work, 
the  company  might,  on  that  certificate,  declare  his  contract  abandon- 
ed, and  drive  him  off  without  appeal  and  without  redress.  It  is  true 
that  something  like  a  fixed  rate  of  payment  was  agreed  upon;  some 
certainty  of  remuneration  was  delusively  held  out  to  his  view;  a 
schedule  of  prices  was  inserted  in  the  contract;  but  it  was  accom- 
panied by  a  cruel  clause  of  revision  which,  in  less  than  three  months, 
they  cruelly  and  unjustly  enforced  against  him.  Crippled  though. he 
was,  he  went  on,  for  he  had  no  choice.  He  called  around  him  his 
friends;  to  a  handsome  private  fortune  be  added  the  resources  with 
which  their  friendship  and  confidence  supplied  him,  and  with  a  per- 
severing industry  absolutely  astonishing  he  was  about  to  overcome 
every  difficult}'',  when  this  corporation,  duped  by  their  faithless  and 
malicious  engineer,  sprung  upon  him  an  abandonment  founded  on  a 
secret  and  false  certificate.  It  was  then  that  the  true  character  of  this 
artificial  being  developed  itself.  Our  client  petitioned  for  a  just  and 
fair  investigation,  but  he  was  disregarded.  He  talked  about  his 
rights  and  was  told  that  he  had  none:  he  spoke  of  the  contract,  but 
they  denied  that  it  contained  any  obligations  for  them.  Exercising 
omnipotent  power  over  others,  this  King  Corporation  claims  the  pro- 
tection of  infancy  for  itself;  it  can't  contract.  He  points  to  a  cove- 
nant to  allow  him  four  years  to  complete  the  work,  but  this,  wrapt 
in  tiie  obscurity  of  intentional  mystification,  means  nothing;  it  is  a 
mere  abstraction.  He  seeks  redress  at  law;  but  he  is  told  he  sha'nt 
20  to  a  jury ;  they  demur.  The  court  decides  against  them,  and  they 
demur  again.  At  every  step  we  are  met  with  the  stubborn  determi- 
nation not  to  try  the  merits  of  this  cause;  with  the  avowed  and 
tjoasted  purpose  never  to  face  our  wronged  client  before  a  jury  of  his 
7)eers.  This  case  presents  then  the  interesting  question,  novel  to  be 
i^re  in  this  country,  whether  the  forms  of  law  can  bring  this  great 
<iorporation  to  submit  its  controversy  with  an  humble  citizen  to  the 
nvestigation  of  the  appointed  tribunals  of  the  country;  whether 
ustice  can  be  administered  to  John  Eandel  as  against  this  infant 
Hercules  through  the  medium  of  a  jury  of  twelve  honest  men.  We 
ask  but  a  trial;  we  rely  on  the  law  of  the  land  and  the  facts  of  our 


256  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

case;  we  rely  on  a  learned  court  and  an  intelligent  jury  for  justice; 
and  if  we  get  it  not  here  we  know  from  long  experience  that  we  can 
never  get  it  from  any  sense  of  justice  residing  in  this  soulless  cor- 
poration. 

The  case  as  it  is  now  before  the  court  on  the  demurrers,  presents 
the  inquiry  whether  the  clauses  in  relation  to  inspection,  prevention 
and  the  allowance  of  time  are  covenants  of  the  company ;  and  whetlher 
our  replication  of  waiver  to  their  plea  df  abandonment  is  good  in 
law.  The  contract  throughout  shows  a  dependence  or  subordina- 
tion of  the  contractor  on  the  engineer,  and  of  the  engineer  on  the 
company.  In  no  less  than  five  instances  the  engineer  is  expressly 
made  the  agent  of  the  company;  and  throughout  he  is  spoken  of  as 
their  engineer,  their  servant.  The  company  then  are  the  principals. 
They  were  to  provide  the  contractor  ^^ith  land  to  dig,  and  protection 
from  interruption  whilst  digging.  But  this  land  belonged  to  others, 
and  was  to  be  bought  by  the  company.  Randel  was  proceeding  with 
his  force;  could  he  wait  and  keep  his  men  idle;  purchase  the  land 
himself;  or  resort  to  a  suit  with  the  company  for  damages?  The  con- 
tract proceeds  on  a  more  sensible  plan.  The  company  agreed  to 
protect  Eandel  in  the  course  of  his  work,  or  if  he  was  prevented  by 
their  default  from  pursuing  the  due  and  best  mode  of  prosecuting 
the  work,  their  engineer  should  assess  the  damage,  which  Eandel 
agreed  to  take.  They  call  this  a  reference  to  arbitration.  Did  you 
ever  hear  of  an  arbitrator  who  was  not  at  liberty  to  decide  for  either 
party?  It  is  essential  to  the  character  of  an  arbitrator.  Here  the 
engineer  is  bound  at  all  events  to  certify  damage  for  Randel  the 
amount  of  which  he  is  constituted  the  assessor.  Even  this  was  not 
to  be  conclusive,  but  dependent  on  a  final  measurement  or  computa- 
tion, it  was  a  mere  temporary  rule  of  damage  to  facilitate  the  pay- 
ments. 

As  to  the  waiver.  The  law  on  this  subject  is  as  well  settled  as 
the  definition  of  a  fee-simple.  The  principle  is  that  every  subse- 
quent ratification  amounts  to  a  command;  omnis  ratihabitio,  &c.  It 
is  a  principle  of  the  common  law;  the  civil  law;  in  the  law  of  in- 
fants; insurances,  agents,  leases;  of  all  the  law  of  presentment  and 
notice  in  relation  to  bills  and  notes;  a  familiar  principle  pervading 
the  whole  law.  Comyn  on  landlord  and  tenant  330 ;  4  Barn  &  Cress. 
606;  Roscoe  on  Evid.;  341;  6  Cranch  268,  273;  5  8erg.  &  Rawle  113, 
115. 

The  principle  then  being  universal  that  a  party  may  waive  his 
right  to  avoid  a  voidable  contract  let  us  apply  it  to  this  case.  The 
plea  sets  forth  that  Wright  certified  on  the  30th  July,  and  the  com- 
pany declared  the  abandonment  on  the  30th  September.  The  repli- 
cation states  a  course  of  conduct  in  the  company  during  this  interval 
wholly  inconsistent  with  any  intention  of  abandonment;  amounting 
to  a  giving  up  or  yielding  the  right  which  on  the  30th  July  they  had 
to  avoid  this  contract.  Is  this  a  waiver?  What  is  a  waiver?  There 
is  no  magic  in  the  word.  Chief  Justice  Tilghman  says  it  is  to  be 
collected  from  the  conduct  of  the  party;  Mr.  Webster,  who  has  fur- 
nished us  with  a  very  good  law  book,  gives  as  the  definition  of  the 
verb  waive  "  to  omit  to  pursue."  It  is  putting  aside  what  a  party  ia 
otherwise  entitled  to;  the  omission  to  take  advantage  of  a  right,  and 


Randel,  Jun.  V*.  Ches.  &  Del.  Uanal  Company. 

the  doing  acts  which  are  inconsistent  with  the  having  taken  advan- 
tage of  it.  And  courts  bf  justice  say  that  a  man  may  readily  waive 
a  forfeiture  for  the  law  leans  against  forfeitures. 

The  plea  does  not  state  that  Randel  did  neglect,  only  that  the 
engineer  certified  that  he  neglected.  Is  this  the  contract?  I  deny  it. 
There  must  by  a  faithful  bona  fide  judgment  of  the  company,  that 
liandel  did  neglect.  I  don't  say  that  such  judgment  must  be  right, 
but  it  must  be  bona  fide.  I  contend  that  the  contract  is  not  that 
there  may  be  an  arbitrary  and  false  certificate  but  a  bona  fide  certi- 
ficate. The  word  is  certify.  Webster.  "  To  make  known,  or  es- 
tablish a  fact."  Can  a  certificate  establish  a  fact  which  does  not 
exist?  There  must  be  the  honest  judgment  of  the  engineer  on  the 
subject,  or  it  is  no  such  certificate  as  the  contract  contemplated. 
But,  say  the  gentlemen,  he  was  only  to  certify  an  opinion.  What  is 
an  opinion  ?  Webster.  "  The  judgment  which  the  mind  forms  upon 
any  matter  or  event."  The  judgment  here  was  to  be  formed  on  the 
fact  of  unreasonable  neglect,  and  I  submit  that  this  plea  should  have 
stated  the  existence  of  such  neglect  as  the  basis  of  the  engineer's 
opinion  and  certificate.  Was  not  this  the  meaning  and  intention  of 
the  parties?  Surely  it  was.  Certify  the  same;  what  does  the  same 
refer  to?  opinion  or  neglect;  the  latter  evidently.  Now  it  does  not 
appear  that  such  a  certificate  was  ever  made.  The  grammatical  con- 
struction certainly  refers  "  same  "  to  the  neglect  of  Eandel,  and  not 
to  the  opinion  which  Wright  might  entertain  of  that  neglect.  But 
granted  that  1  am  wrong  here,  I  come  to  the  question  of  abandon- 
ment and  waiver  as  it  appears  on  the  pleadings.  On  the  30th  July 
the  engineer  certified  the  neglect,  and  on  30th  September  the  com- 
pany did,  on  said  certificate,  determine  the  contract  to  be  abandoned. 
Is  this  the  contract?  It  gives  the  company  the  power  of  declaring 
that  Randel  has  abandoned.  I  stick  not  to  the  grammatical  con- 
struction, but  I  look  at  the  facts.  Is  it  the  same  thing  to  say  that 
Randel  has  abandoned  his  contract  on  the  30th  July,  and  to  deter- 
mine the  contract  to  be  abandoned  on  the  30th  September?  To  be, 
is  future  or  at  least  present;  it  can't  be  past.  Again:  The  declara- 
tion was  to  be  on  the  certificate.  On  always  means  proximity; 
nearness.  Webster.  Here  was  an  interval  of  two  months;  and 
what  was  the  state  of  things  in  the  mean  time?  Randel  digging  and 
working;  Wright  twice  a  month  certifying  the  work  to  the  company; 
the  company  accepting  the  certificates  and  paying  the  contractor; 
and  yet  they  plead  in  effect,  at  least  they  must  sustain  the  position, 
that  on  the  certificate  they  determined  that  Randel  had  abandoned 
his  contract  on  the  30th  July.  Randel  must  have  been  amazed  to 
learn  that  he  had  abandoned  the  work  in  July  when  he  knew  that 
all  August  and  September  he  had  been  delving  in  the  mud,  tin  the 
midst  of  autumnal  fevers,  paying  five  hundred  men  their  daily 
wages,  exhausting  his  funds  and  draining  his  friends;  and  submit- 
ting himself  twice  a  month  to  the  inspection  of  the  "  committee  of 
works,"  who,  armed  with  champaign  and  Cook's  pills,  ventured  in 
this  unhealthy  region  to  see  how  fast  a  man  could  complete  a  work 
that  he  had  abandoned.  Surely  he  must  have  been  in  a  trance  all 
this  time,  or  the  abandonment  is  false  and  its  operation  fraudulent. 

33 


258  Handel,  Jun.  vs.  Ches,  &  Del.  Canal  Company. 

But  they  say  they  were  to  have  a  reasonable  time.  It  is  not  so 
said  in  the  contract.  The  contract  says  the  abandonment  may  be  on 
the  certificate;  that  the  company  may  immediately  after  relet  the 
contract,  &c.  But  if  the  law  does  give  a  reasonable  time  it  must  be 
in  reference  to  the  subject  matter.  Here  was  a  great  work  requiring 
a  large  force  and  an  immense  daily  expenditure ;  promptitude  in  etxer- 
cising  a  right  to  dissolve  such  a  contract  was  necessary;  any  delay 
would  be  unreasonable  because  destructive  to  Randel.  In  cases  of 
insurance  the  law  requires  instant  action;  in  all  cases,  promptitude 
and  diligence.  Can  it  be  possible  that  two  months  can  be  consid- 
ered prompt  action  or  due  diligence  in  reference  to  taking  advantage 
of  a  forfeiture  of  such  a  contract  as  this. 

J.  A.  Bayard,  for  defendants. 

There  are  three  leading  questions  in  this  case: — First.  The  con- 
struction of  the  contract  in  relation  to  the  certifying  of  work  done, 
damages  sustained,  &c.  The  principle  I  start  with  is,  that  in  con- 
struing contracts  the  object  is  to  do  justice  between  the  parties  ac- 
cording to  the  intention  they  mutually  entertained  at  the  time  the 
contract  was  entered  into.  Chitiy  on  Con.  19;  1  Saund.  61,  n.  1. 
1  agree  that  every  covenant  is  an  obligation;  but  not  that  every  obli- 
gation is  a  covenant.  Covenants  can  only  be  by  deed;  obligations 
may  be  without  deed.  I  do  not  agree,  either,  to  Mr.  Clayton's  di- 
vision of  this  contract  into  covenants  to  pay  for  work  done  and  cove- 
nants other  than  to  pay  for  work  done.  The  contract  makes  no  such 
division.  The  contract  is  to  be  construed  from  the  whole  and  not  a 
part.  There  are  but  two  general  covenants  in  it,  the  one  to  per- 
form the  work  and  the  other  to  pay  for  it  when  fully  completed. 
The  others  are  all  dependent  on  these,  growing  out  of  them,  explain- 
ing, modifying  or  regulating  details.  This  work  was  beyond  the 
means  of  any  individual  to  perform  without  being  paid  as  it  prog- 
ressed, hence  arose  the  provision  for  stated  semi-monthly  payments 
according  to  certain  certificates.  Eandel  was  the  claimant.  The 
company  had  to  guard  against  excessive  advances  and  keep  the  pay- 
ments within  the  work.  Under  these  circumstances  they  made  a 
mutual  agreement  that  a  scientific  man  should  stand  in  the  relation 
of  an  umpire  or  judge  to  certify  the  amount  of  work  done,  &c.  He 
was  invested  with  a  discretionary  power  in  the  business:  and  made 
the  judge  between  the  parties.  The  covenant  of  the  company  was 
not  to  pay  semi-monthly  on  the  work  being  done,  but  on  its  being 
certified.  The  certificate  is  a  condition  precedent;  and,  without  it, 
no  pay  was  due.  If  no  certificate  was  given,  the  contractor  was  es- 
topped to  say  that  any  work  had  been  done.  The  certificate  was  to 
be  equally  binding  on  the  parties  which  created  the  mutuality  of  the 
reference.  So  of  the  clause  referring  it  to  the  engineer  to  divide 
the  ten  per  cent,  reserved  in  case  of  Randel's  death;  his  administra- 
tors could  never  have  recovered  any  part  of  this  ten  per  cent,  with- 
out the  certificate  of  the  engineer:  unless  indeed  there  was  collusion 
between  the  engineer  and  the  company,  the  other  party  might  in 
such  case  go  into  chancery  and  compel  a  certificate.  So  in  the  pre- 
vention clause.  To  prevent  misunderstandings  and  disputes  the  par- 
ties agreed  to  repose  in  the  judgment  of  the  engineer  and  to  refer  it 
to  him  to  assess  the  damages.      The  company  were  equally  bound 


r 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  259 


Avith  the  contractor;  and  if  the  company  was  bound  to  pay  $10,000 
on  a  certificate  though  there  might  be  but  $5,000  amount  of  work 
done,  where  is  the  mutuality  or  justice,  to  say  that  the  other  side 
was  not  equally  bound  to  take  whatever  was  certified,  and  to  take 
nothing  but  on  a  certificate?  Wherever  the  skill  and  discretion  of  an- 
other is  reposed  on  in  a  contract  between  two  parties  it  makes  a  ref- 
erence, and  I  defy  the  counsel  to  show  a  case  where  the  decision  of 
such  an  arbitrator  has  been  overhauled  except  on  the  ground  of  fraud 
or  irregularity;  not  on  any  ground  affecting^  his  judgment  or  discre- 
tion for  this  is  reposed  on  by  the  parties.  It  has  been  contended  that 
this  prevention  clause  was  chiefly  for  the  benefit  of  Randel.  It  is 
not  so.  What  was  the  implied  covenant  of  the  law  in  case  of  pre- 
vention? That  they  should  pay  damages  without  restriction ;  the  law 
even  goes  so  far  as  to  entitle  the  party  to  damages  without  executing 
his  part  of  the  contract.  1  Saund,  60,  n.  2.  The  design  of  this 
clause  was  evidently  to  restrain  the  general  implied  covenant.  It 
was  of  vital  importance  to  take  the  decision  of  this  question  of  dam- 
age from  the  loose  judgment  of  unscientific  men  and  refer  it  to  that 
of  a  man  of  skill  and  knowledge.  And  if  this  was  the  intention  of 
the  parties  can  the  deft,  be  called  on  to  pay  according  to  any  other 
assessment?  The  contract  secures  them  the  protection  of  the  en- 
gineer's judgment:  the  parties  mutually  agreed  to  rely  upon  his  opin- 
ion as  to  the  amount  of  damages,  and  without  that  opinion  the  plff. 
cannot  recover.  If  the  engineer  has  not  certified  any  damage  it  is 
conclusive  evidence  that  no  damage  has  been  sustained.  It  is  con- 
clusive or  the  mutuality  of  the  contract  is  destroyed. 

It  is  admitted  that  the  power  to  abandon  the  contract  on  the  engi- 
neer's certificate  of  neglect  is  in  the  nature  of  a  reference.  Why 
more  so  than  in  the  other  clauses?  Because  the  neglect  is  to  be  as- 
certained by  the  opinion  of  the  engineer?  So  is  the  amount  of  work 
and  of  damage  to  be  ascertained  by  his  opinion.  The  deviation 
clause  is  still  stronger.  Can  it  be  that  the  parties  ever  intended  to 
have  the  damage  arising  from  deviations  valued  by  any  other  than  a 
scientific  man  who  alone  from  his  skill  in  the  business  was  competent 
to  assess  the  actual  damage?  on  his  certificate  only  then  can  the  plff. 
recover.  If  he  refused  to  certify  on  proper  grounds  the  plff.  had  no 
remedy;  if  on  improper  grounds,  his  remedy  was  only  in  equity,  or 
against  the  engineer  himself. 

I  care  not  if  this  engineer  be  the  agent  of  the  company.  The 
agreement  was  to  abide  by  his  certificate.  I  can  establish  the  posi- 
tion that  if  Randel  had  agreed  to  take  what  the  company  themselves 
should  certify  he  could  not  recover  otherwise  than  on  the  certificate. 
1  Maul  &  Selw.  290,  2.  The  provision  of  semi-monthly  payments  is 
a  qualification  of  the  general  covenant  to  pay  on  the  completion  of 
the  work,  and  being  a  concession  to  the  contractor  it  must  be  taken 
with  its  condition;  the  opinion  of  the  engineer  and  his  certificate. 
It  would  have  been  impossible  for  this  company  to  have  succeeded 
on  any  other  principle  than  that  the  contractor  should  be  in  the 
power  of  their  engineer.  If  in  the  various  disputes  that  must  arise 
in  such  a  work  there  be  no  one  to  decide  promptly  and  finally  no 
company  could  execute  it. 

No  express  words  are  requisite  to  make  a  reference;  and  in  con- 


260  Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company. 

Btruing  contracts  the  court  will  look  to  the  condition  of  things  in 
reference  to  which  they  are  made.    1  Maule  &  Selw.  105;  Chiity  on 
Cont.  21.     If  the  reference  had  been  to  an  engineer  mutually  to  be 
selected  could  there  be  a,  doubt?     And  does  it  alter  the  matter  that  it 
is  referred  to  the  company's  engineer?     If  you  refer  a  matter  to  the 
other  party's  servant,  brother  or  father,  it  is  still  a  reference,  and 
binding.     Apart  from  this  contract  Benjamin  Wright  was  the  agent 
and  engineer  of  this  company.      Knowing  this,  John  Randel  agreed 
to  take  this  person  to  act  between  him  and  the  company  on  tKis  sub- 
ject.    As  engineer  merely  he  held  no  power  to  do  these  things.     He 
derives  his  power  from  the  contract.     He  drops  his  character  of  agent 
of  one  party  and  becomes  the  appointed  agent  of  both.     And  a  refer- 
ence would  be  valid  to  an  arbitrator  appointed  by.  one  Off  the  parties. 
(Examines  the  cases  cited  on  the  other  side,  and  admits  theiji  to  be 
right  in  the  construction  of  the  covenants  on  which  they  arise,  but 
denies  that  they  can  vary  his  construction  of  this  contract.)     I  don't 
deny  that  there  may  be  implied  covenants,  nor  that  the  language  of 
a  covenant  may  be  referred  to  the  party  who,  according  to  the  inten- 
tion of  the  parties,  was  to  be  bound;  but  the  implication  must  be  a 
necessary  and  apparent  one,  and  the  intention  must  be  manifest.     I 
admit  also,  that  the  rules  of  construction  of  covenants  are  the  same  in 
courts  of  law  and  equity,  but  I  deny  that  both  courts  afford  the  same 
remedies.     It  has  been  argued  that  the  person  who  drafted  this  con- 
tract knew  well  how  to  appoint  an  umpire,  and  it  is  thence  inferred 
that  in  these  clauses  it  was  not  so  designed.     Judging  from  the  in- 
strument itself  1  should  say  a  lawyer  did  not  draft  it.      The  term 
umpire  is  used  improperly;  an  umpire  is  a  third  person  appointed 
to  decide  between  two  other  judges  or  referees  who  differ  in  opinion. 
It  is  not  so  used  here.     The  only  peculiar  force  that  the  word  shall 
has  in  this  contract,  has  been  imparted  to  it  by  the  emphasis  of  coun- 
sel.    In  thre  umpirage  clause  the  term  is  shall.     It  is  of  no  more  force 
than  will,  unconnected  with  the  intent  of  the  parties.      There  is 
nothing  in  the  term  itself  to  make  a  covenant. 

I  have  no  hesitation  in  admitting  several  of  the  positions  taken  by 
the  other  side.  A  master  is  liable  for  the  acts  of  his  servant  within 
the  scope  of  his  authority :  these  acts  are  not  within  the  scope  of  the 
engineer's  authority  as  the  agent  of  the  company.  They  grow  out  of 
contract  and  appertain  to  him  as  the  agent  of  both  parties.  The  ar- 
gument drawn  from  the  words  "to  prevent  disputes,"  namely,  that 
an  arbitration  is  to  settle,  and  not  prevent  dispiutes,  is  fallacious.  It 
is  founded  on  the  technical  meaning  of  arbitration,  a  reference  of 
existing  disputes.  But  is  it  not  competent  to  refer  contemplated 
disputes;  to  appoint  a  referee  to  prevent  disputes?  It  is  done  in  all 
policies  of  insurance.  An  arbitrator  must  have  the  power  to  bind 
both  parties.  And  so  he  has.  The  company  was  as  much  bound  by 
the  certificate  of  ^;his  engineer  as  Randel  was.  The  demurrer  ad- 
mits all  the  facts  well  and  sufficiently  pleaded,  and  no  more.  If  our 
construction  of  the  contract  be  right,  it  is  fatal  to  all  the  breaches 
of  the  third  count,  except  the  fifth,  sixth,  seventh  and  fourteenth. 

The  next  question  I  shall  consider  is  the  inquiry  what  acts  amount 
to  taking  the  time  to  be  less  than  four  years  within  the  meaning  of 
that  clause  of  the  contract.     The  court  have  already  decided  this  to  be 


Bandel,  Jun.  vs.  Chios.  &  Del,  Canal  Company.  261 

a  covenant  capable  of  being  broken,  but  not  what  acts  will  constitute 
a  breach.      The  sixth  breach  of  the  second  count  alledges  that  the 
company  unlawfully  declared  the  contract  abandoned,  and  prevented 
Eandel  from  executing  the  work.     I  can't  understand  how  this  was 
a  taking  of  the  time,  unless  it  appeared  that  it  was  done  with  that 
view.     He  may  have  been  driven  off  for  disobedience  or  neglect  of 
orders;  how  can  the  court  say  without  an  averment  of  intention,  that 
it  was  a  taking  of  the  time.     The  quo  animo  must  direct  the  act  to 
the  intention  for  it  is  consistent  with  other  objects  than  that  of  taking 
time.      Keletting  the  contract  is  not  a  breach  of  this  covenant;  nor 
is  the  preventing  Randel  from  pursuing  the  due  and  best  mode  of 
executing  the  contract.     This  last  is  a  restriction  of  the  general  cove- 
nant; what  would  constitute  a  breach  of  it  would  not  be  a  breach  of 
the  other,  or  they  amount  to  the  same  thing.      The  act  stated  in 
the  breach  applies  to  the  prevention  clause.     I  admit  that  a  general 
covenant  is  not  necessarily  restricted  by  a  subsequent  special  cove- 
nant, but  only  where,  the  reasonable  construction  requires  such  a 
qualification.     3  Bos.  &  Pul.  574,  5,  6.     Here  is  a  special  covenant 
that  in -case  of  prevention  the  company  shall  pay  on  the  certificate  of 
the  engineer.      Suppose  a  prevention,  is  it  a  violation  merely  of  the 
prevention  clause,  or  does  it  pass  by  it  and  constitute  a  breach  of  the 
time  covenant?     That  would  make  the  time  covenant  ride  over  and 
expuuge  all  the  particular  covenants.     That  covenant  is  indefinite  in 
its  terms.     It  points  out  not  what  shall  be  a  taking  of  the  time;  and 
I  contend  that  no  act  embraced  within  the  special  covenants  can  be 
applied  to  it.      If  it  can,  those  special  provisions  are  nugatory;  and 
by  resorting  to  the  general  you  evade  all  the  restrictions  of  the  spe- 
cial clauses.      The  waiver.      Are  the  matters  contained  in  the  repli- 
cation of  waiver  a  sufficient  answer  to  the  plea  of  abandonment?     I 
notice  first,  some  of  the  minor  objections  to  the  plea.      The  force 
of  the  word  on.     Mr.   AVebster  may  be  good  authority  elsewhere, 
and  even  that  is  doubted,  but  here  I  might  reply  to  the  gentleman 
as  Lord  Ellenborough  once  did  to  an  attorney  who  cited  Walker's 
dictionary.     ]\Ir.  Walker,  sir;  I  never  heard  of  him!      On,  he  says, 
always  means  proximity,  nearness.      Why  the  argument  the  learned 
gentleman  made  yesterday  was  on  a  coVitract  made    ten   years    ago. 
Neither  in  the  one  case  nor  the  other  has  the  word  any  relation  to 
time.     The  declaration  was  to  be  on  the  certificate  as  a  foundation; 
and  the  company  did  proceed  on  the  certificate  after  investigation  to 
exercise  the  power.     IDo  the  matters  replied  avoid  the  plea?      What 
are  they?     That  Eandel  without  neglecting,  &c.,  went  on  to  work  in 
the  interval  between  the  30th  July  and  30th  September,  under  the 
orders  of  the  company;  that  they  ])aid  large  sums  of  money  for  work 
thus  done;  that  this  work  was  less  valuable  to  him  than  the  work  to 
be  done;  that  he  had  no  notice  of  the  certificate,  &c. 

At  common  law  I  contend  that  the  principles  of  waiver  are  dif- 
ferent in  case  of  instruments  under  seal  and  without  seal.  If  the  for- 
feiture or  right  of  forfeiture  arises  on  a  sealed  instrument  it  cannot 
be  waived  or  dispensed  with  by  parol  agreement.  The  only  way 
you  can  waive  such  a  right  is  by  release,  or  by  an  act  legally  incon- 
sistent with  the  forfeiture  or  right  of  forfeiture,  and  this  after  notice. 
The  affirmance  of  a  voidable  lease  by  parol,  though  on  consideration, 


262  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

does  not  dispense  with  the  forfeiture.  Mere  forbearance  and  lying 
by  is  not  a  waiver.  Acceptance  of  rent  after  notice  to  quit  affirms 
the  tenancy.  It  is  because  the  party  can't  stand  in  the  relation  of 
tenant  and  trespasser  at  the  same  time.  The  waiver  of  rights  under 
process  of  courts  can  have  no  application,  for  these  depend  on  the 
rules  and  practice  of  the  courts,  and  proceed  on  equitable  principles. 
Insurance  cases  are  founded  on  the  law  merchant  in  reference  to  the 
convenience  of  trade;  and  arise  upon  instruments  not  under  seal. 
So  of  bills  and  notes.  As  to  the  waiver  of  a  forfeited  mortgage,  which 
was  spoken  of,  I  deny  the  case  altogether,  and  deny  that  ftny  waiver 
can  take  place  by  parol  of  a  forfeiture  arising  on  a  sealed  instrument. 
3  Co,  Rep.  64;  Pennant's  case;  1  Saund.  287,  n.  16;  3  Taunt.  78;  3 
Salk.  3;  6  Term  Rep.  219.  Parties  cannot  by  parol  vary  a  sealed  in- 
strument.    2  Eng.  Com.  Law  Rep.  237 ;  4  do.  216. 

The  waiver  must  be  by  an  act  that  creates  a  legal  dispensation. 
The  right  to  forfeit  accrued  from  the  certificate.  The  company  were 
not  bound  to  disaffirm ;  had  a  discretion.  The  mere  forbearance  was 
no  waiver;  whilst  they  forebore  Randel  had  a  right  to  go  on  and 
work,  and  the  company  to  pay  him,  for  the  contract  continued  until 
actual  declaration  of  abandonment.  The  forbearance,  therefore,  and 
all  the  acts  alledged  in  the  replication,  were  consistent  with  either  the 
forfeiture  or  the  waiver.  If  the  company  had  given  a  written  dec- 
laration to  Randel,  dispensing  with  the  forfeiture  and  setting  up  the 
contract  it  would  not  be  a  waiver;  for  the  books  say  you  can't  waive 
a  forfeiture  by  deed  by  parol.  Neither  declarations  nor  acts  then 
have  waived.  The  payment  for  work  was  all  proper,  and  legally 
consistent  with  the  right  to  forfeit;  they  were  bound  to  pay  whether 
they  declared  the  forfeiture  or  not.  The  contract  continued.  Ac- 
cording to  the  argument  of  the  other  side  the  company  had  no  right 
to  let  Randel  work  one  day  after  the  certificate ;  yet  they  admit  that 
the  certificate  itself  worked  no  forfeiture;  and  that  after  it  the  com- 
pany have  a  discretion  to  forfeit  or  not.  If  they  have  the  discre- 
tion they  must  have  the  means  of  exercising  it  prudently,  and  this 
requires  investigation,  deliberation  and  time.  Th6y  took  suitable 
time  for  this,  and  did  no  act  in  the  interval  that  showed  a  determina- 
tion not  to  take  advantage  of  the  forfeiture;  nor  any  act  legally  in- 
consistent with  their  right  of  declaring  the  contract  abandoned.  The 
certificate  gave  the  right  to  abandon  without  reference  to  time;  and 
the  only  remedy  for  an  abuse  of  it  was  in  chancery.  All  considera- 
tion of  injury  to  Randel,  or  abuse  of  the  power  of  abandonment  by 
the  company,  belongs  to  a  court  of  equity  and  not  of  law,  for  equity 
can  impose  terms.     6  Com.  Law  Rep.  462,  466. 

The  special  demurrers  depend  on  the  construction  which  the  court 
may  give  to  the  inspection  clause.  We  submit  that  the  time  of  the 
appointment  of  the  inspector  is  not  material  nor  traversable. 

George  Read,  junior,  for  plaintiff. 

The  case  is  an  unparalleled  one  in  this  state.  It  presents  an  ac- 
knowledgment on  the  record  of  every  matter  of  claim  on  the  part  of 
the  plaintiff,  and  yet  a  resistance  to  the  recovery  of  any  thing.  The 
defendants  admit  that  they  have  not  measured  or  estimated  the  work ; 
that  they  have  not  certified  either  the  work  or  the  damages  arising 
for  prevention;  they  admit  that  they  unlawfully  drove  the  plaintiff 
from  the  work  and  forfeited  his  contract;  that  they  retained  and  still 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  263 

keep  ten  per  cent,  on  all  the  work  done;  and  yet  they  say  he  is  not 
entitled  to  recover  any  thing;  that  there  is  nothing  in  the  contract  to 
bind  them;  in  short,  that  there  is  no  law  to  be  found  in  the  land  to 
bring  them  to  a  proper  accountability.     We  shall  see! 

The  contract  gave  to  this  company  the  power  under  given  circum- 
stances to  declare  the  contract  abandoned.  It  bestows  power  and 
not  mere  right.  This  implies  discretion;  the  legal  and  proper  use 
of  the  power.  2  Bac.  Ah.  77,  cov't.  L.;  2  Johns.  Rep.  395,  It 
strikes  at  once  that  as  this  was  a  j)ower  full  to  prostrate  and  ruin  the 
contractor,  its  exercise  was  to  be  strictly  within  its  limits,  and  in  con- 
formity with  the  law.  The  doctrine  of  waiver  does  most  materially 
connect  itself  with  the  exercise  of  such  power;  any  illegal  use  of  it  is 
inconsistent  with  its  existence  and  is  a  waiver.  The  principle  was 
entirely  mistaken  by  Mr.  Bayard  or  confounded  with  a  distinct  prin- 
ciple. We  hold  that  any  power  derived  from  the  acts  or  omissions  of 
another  to  avoid  or  forfeit  a  contract  may  be  dispensed  with  or  waived 
in  any  manner,  either  by  word  or  act;  and  may  further  be  destroyed 
by  the  very  attempt  to  exercise  it  in  an  illegal  manner.  Mr.  Bay- 
ard's principle  is  an  entirely  distinct  one;  that  a  sealed  instrument 
can't  be  destroyed  or  waived  but  by  an  instrument  under  seal.  True, 
but  what  would  his  sealed  discharge  be?  Not  a  waiver  but  a  release. 
They  are  entirely  different.  A  release  destroys  the  contract;  a 
waiver  of  a  forfeiture  affirms  it.  The  covenant  can't  be  destroyed 
but  by  an  instrument  of  like  dignity;  but  a  collateral  power  to  de- 
stroy it  may  be  waived,  and  the  covenant  set  up,  in  any  manner  by 
word  or  deed.  Keeping  in  view  then  that  this  power  was  to  be  exer- 
cised strictly  and  that  it  might  be  waived ;  inquire  what  are  the  facts 
of  the  waiver.  The  certificate  was  made  clandestinely:  no  notice  of 
it  was  given  to  Randel.  Could  any  one  suppose  from  the  relation 
which  subsisted  between  these  parties  in  the  interval  between  the  cer- 
tificate and  declaration,  that  the  company  entertained  any  idea  of 
abandoning?  It  was  the  state  of  things  at  the  time  of  the  certificate 
that  authorized  the  abandonment.  The  present  neglect.  All  the 
work  done  after  was  changing  this  state  of  things  and  rendering  a 
new  certificate  necessary,  if  the  certificate  was  designed  as  any  evi- 
dence of  the  actual  neglect.  And  who  can  sa)'^  the  parties  did  not  so 
mean  it?  Delay  therefore  was  inconsistent  with  the  power.  An 
altered  state  of  things  in  relation  to  the  work  destroyed  the  certifi- 
cate, for  it  became  no  evidence  of  existing  neglect,  and  of  course  de- 
stroyed the  power.  Eandel  was  sinking  money  for  the  benefit  .of  the 
company,  doing  the  unprofitable  part  of  the  contract.  They,  by  their 
acts,  induce  him  to  go  on  as  if  no  power  of  abandonment  existed,  i.  e. 
as  if  no  certificate  had  been  given;  they  conceal  it  from  him,  induce 
him  to  work;  derive  benefit  from  that  deception;  produce  injury  and 
loss  to  him:  this  is  a  waiver.  The  ten  per  cent,  reserved  on  work 
done  was  an  actual  gain  —  for  this  was  forfeited  on  abandonment. 
How  long  were  they  authorized  thus  to  tamper  with  his  rights  in  the 
illegal  exercise  of  a  power  of  forfeiture  which  they  were  bound 
strictly  to  pursue?  The  truth  of  the  certificate  might  at  any  time 
have  been  ascertained  in  three  hours.  And  shall  they  take  two 
months?  How  much  longer?  Where  will  you  stop?  The  correct- 
ness of  a  proposition  is  frequently  tested  by  carrying  it  out;  and  this 


264  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

brings  you  to  a  case  of  such  monstrous  injustice  that  it  cannot  be  true. 
If  prompt  action  be  not  required  by  the  contract  there  is  no  rule  of 
action;  and  manifest  injustice  will  arise. 

I  come  now  to  the  prevention  clause.  Does  it  contain  a  covenant? 
The  word  shall  is  a  term  of  obligation.  Who  ever  used  this  word 
in  reference  to  the  acts  of  another  without  covenanting  for  those  acts? 
And  further,  it  proves  the  control  of  the  party  contracting  over  the 
person  whose  acts  are  contracted  for;  it  shows  in  this  case  that  the 
engineer  was  the  agent  and  under  the  control  of  the  company,  and 
they  are  bound  for  his  acts.  The  covenant  was  for  the  mutual  bene- 
fit of  the  parties.  Randel  was  benefitted  by  the  prompt  payment 
which  he  was  to  get  by  means  of  these  certificates;  and  it  was  greatly 
to  the  advantage  of  the  company  to  have  not  only  the  work  done,  but 
the  damages  sustained,  fixed  by  the  certificate  of  their  own  officer 
dependant  on  and  responsible  to  them,  and  of  course  having  every 
inducement  to  take  care  of  their  interest.  The  amount  of  damage, 
&c.  was  referred  to  a  person  under  the  control  of  the  company,  to 
be  fixed  by  his  certificate;  would  it  not  avoid  the  whole  intent  of 
this  arrangement  to  say  that  the  company  were  not  bound  to  compel 
this  agent  to  make  certificates?  What  advantage  did  Randel  gain  by 
referring  the  amount  to  the  other  party's  servant  if  he  did  not  ob- 
tain a  security  that  the  certificates  should  be  made?  The  object  of 
the  concession  was  prompt  payment;  the  means,  certificates;  if  he 
did  not  secure  these  he  yielded  his  rights  for  no  corresponding  bene- 
fit. And  this  is  not  the  case  of  one  covenanting  for  the  acts  of  a 
third  person;  it  is  the  case  of  a  corporation  which  can  act  only  by 
agents  covenanting  for  the  acts  of  one  of  those  agents;  it  is  a  cove- 
nant to  do  the  act  itself  through  a  particular  agent  for  whom  it  is 
bound  both  on  the  principles  of  law  and  of  the  contract.  This  ser- 
vant of  the  company  has  tseen  dignified  in  the  argument  by  the  title 
of  Judge.  If  this  grave  cause  would  allow  of  such  pleasantry,  we 
would  suppose  the  application  of  such  a  title  to  such  a  person  was  de- 
signed to  turn  it  into  ridicule.  One  might  think  from  the  terms  of 
respect  paid  to  liim  that  this  distinguished  individual  carried  in  his 
pockel  a  commission  from  the  Governor  of  your  state,  who  only 
makes  Judges,  constituting  him  a  high  officer  permanent  in  his  func- 
tionh-  and  independent  in  his  action,  instead  of  the  pitiful  creature 
alluded  to  in  this  contract,  dependent  on  the  corporation  for  his  ex- 
istence and  character  as  well  as  his  bread,  living  only  on  their  ap- 
proving smiles  and  dreading  their  frowns  as  destruction.  He  was 
wholly  under  their  control;  they  might  say  of  him  as  Petruchio  says 
of  his  gentle  spouse  "  he  is  my  house,  mv  household  stuff,  my  ox,  n\y 
ass,  my  any  thing."  IS'o  such  wild  and  forced  construction  can  be 
put  on  this  contract  as  would  clothe  this  individual  with  a  character 
80  utterly  inconsistent  with 'his  real  nature  as  the  making  him  an  um- 
pire and  judge  would  be. 

(Ropoatp  and  enforces  his  colleagues  arguments  on  the  time  cove- 
nant. Cites  3  Bos.  &  Pul.  575.  Replies  to  the  authorities  from  1 
Maule  &  Selwyn.  If  a  certificate  had  been  given  in  this  case  to  any 
amount,  it  would  then  be  similar  to  Price  vs.  Ilollis.  If  pleaded 
it  would  be  conclusive.  In  Taylor  vs.  Breiver  (290)  the  resolution 
did  not  bind  the  committee  to  any  thing.    It  was  merely  an  engage- 


Handel,  Jun.  vs.  Ches.  &  Del,  Canal  Company.  265 

ment  of  honor.  Cites  1  Saund.  33,  n.  2,  and  2  ditto  118,  119, 
123,  n.  4,  to  show  that  no  special  request  of  a  certificate  need  be 
stated. 

Rogers,  for  plaintiff. 

The  inspection  clause.  Mr.  Bayard  admits  that  this  clause  con- 
tains a  covenant  so  far  as  that  the  company  shall  appoint  an  inspector ; 
the  pleadings  admit  it.  By  what  reasoning  does  it  appear  to  be  the 
covenant  of  the  company  to  provide  an  inspector  any  more  than  to 
secure  an  inspection  and  certificate.  It  was  these  that  Kandel  was 
seeking  to  obtain  as  the  means  of  pa3'ment,  and  for  which  he  was 
yielding  important  rights.  The  argument  on  the  other  side  gives 
him  nothing;  and  it  expunges  from  the  contract  all  the  covenants  but 
two,  including  that  on  which  the  court  has  already  given  judgment. 
If  the  certificate  is  a  condition  precedent  to  the  payment  for  work 
done,  and  the  company  are  not  bound  to  furnish  certificates,  then  the 
covenant  for  semi-monthly  payments  is  destroyed,  and  the  company 
had  it  in  their  power  to  stop  the  work  and  drive  off  the  contractor 
without  abandonment.  They  might  first  compel  him  to  neglect,  and 
then  compel  him  to  abandon.  He  could  not  proceed  without  funds; 
and  these  semi-monthly  estimates  and  certificates  were  the  means  by 
which  he  was  to  procure  funds.  If  the  contract  secured  him  these, 
he  knew  that  while  he  worked  he  must  be  paid;  but  the  construction 
of  the  other  side  secures  him  nothing,  and  destroys  the  most  impor- 
tant provisions  of  the  contract.  The  idea  of  reference  is  equally  in- 
consistent with  the  covenant  for  a  final  certificate,  and  with  the  con- 
cluding clause  of  umpirage.  Was  there  to  be  a  semi-monthly  set- 
tlement of  disputes  between  these  parties  before  this  arbitrator;  or 
was  it  not  rather  a  rule  of  payment  according  to  estimates  and  certi- 
ficates to  be  made  by  the  company's  agent.  The  operation  which  is 
supposed  to  have  involved  so  much  science  and  skill,  consisted  in 
taking  the  depth  and  width  of  the  excavation  with  a  rod,  and  making 
a  few  plain  calculations.  The  damage  on  the  prevention  clause  might 
easily  be  estimated  by  the  number  of  days  the  contractor  was  delay- 
ed, and  the  force  he  had  idle.  Suppose  the  contract  had  been  that 
the  company  should  pay  semi-monthly,  according  to  their  own  esti- 
mates and  certificates;  would  not  this  be  a  covenant  on  their  part  to 
makes  the  certificates?  The  defendants  being  a  corporation  can  act 
only  by  agents;  and  the  provision  here  is  substantially  that  they  shall 
inspect  and  certify.  It  has  been  said  these  matters  were  without  the 
scope  of  the  engineer's  authority.  Why,  what  else  was  he  to  do? 
They  were  the  very  things  for  which  an  engineer  was  needed. 

Cites  on  the  construction  of  covenants.  Bac.  Ah.  77;  2  Johns. 
395;  1  Saund;  8  Com.  Low  Rep.  368,  71;  Vin.  Ah.;  2  Mod. 
266.  An  agreement  to  pay  £  for  a  tract  of  land,  is  an  implied  cove- 
nant to  convey  the  land.  It  was  stated  in  a  recital  that  a  fine 
should  be  levied,  and  it  was  held  a  covenant  to  levy  the  fine.  Ot- 
way  vs.  Holdip.  Covenant  to  pay  an  award  by  a  person  to  be  ap- 
pointed by  the  parties.  Plaintiff  declares  that  the  defendant  would 
not  appoint.  Construed  a  covenant,  otherwise  the  defendant  might 
defeat  it.    Applies  that  authority  to  this  case. 


266  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

The  abandonment  and  waiver. 

What  was  to  be  waived  here?  The  right  of  the  company  on  a 
given  state  of  facts,  to  be  ascertained  by  a  certificate,  to  complete  a 
forfeiture.  If  the  condition  of  things  is  changed  the  certificate  can  be 
no  longer  the  basis  of  an  abandonment,  or  if  the  company  do  anv  act 
after  the  certificate,  inconsistent  with  taking  advantage  of  it,  it  is  a 
waiver.  Like  a  condition  of  re-entry  and  forfeiture  on  non-payment 
of  rent.  The  non-payment  gives  the  right  of  re-entry ;  the  act  com- 
pletes the  forfeiture.  Any  thing  inconsistent  with  the  intention  to 
take  advantage  of  the  forfeiture,  waives  it.  On  the  certificate  being 
given  I  lay  it  down  that  the  company  was  bound  by  law  to  act  upon 
it  or  not,  to  elect  within  a  reasonable  time.  The  nature  of  the  con- 
tract; the  rights  of  the  parties,  and  the  continually  changing  state  of 
the  work,  rendered  this  necessary.  The  doctrine  of  compelling  the 
exercise  of  a  power  in  a  reasonable  time,  runs  all  through  the  law, 
and  attaches  with  peculiar  strictness  to  forfeitures,  which  the  law  dis- 
courages. There  is  a  class  of  cases  which  peculiarly  regard  the 
injury  done  the  other  party  in  the  mode  of  executing  a  power.  I 
cite  10  Com.  Law  Rep.  417.     Holroyds  opinion. 

I  hold  then  that  where  the  party  having  the  power  to  take  advan- 
tage of  a  forfeiture,  delays  or  does  any  act  in  reference  to  the  power 
which  would  injure  the  other  party  and  benefit  himself  it  is  inconsis- 
tent with  the  legal  exercise  of  the  power,  and  dispenses  with  the  for- 
feiture. The  injury  to  Randel  by  delay  was  manifest.  From  the 
moment  of  the  certificate  he  was  working  ten  per  cent,  below  the 
contract  price ;  for  the  ten  per  cent,  retained  is  forfeited  by  the  aban- 
donment. The  replication  also  states,  and  the  demurrer  admits  that 
the  work  done  in  the  interval  was  that  portion  of  the  ^/hole  work 
which  was  most  disadvantageous  and  unprofitable  to  the  contractor. 
The  company  therefore  gained  a  great  advantage  in  lying  by  with  a 
secret  and  concealed  certificate  until  the  contractor  got  through  this 
unprofitable  work,  and  then  cutting  him  off  by  the  abandonment  from 
that  which  would  have  been  profitable  to  him.  In  addition  the  whole 
conduct  of  the  company  towards  him  after  the  certificate  recognized 
and  set  up  the  contract,  and  was  wholly  inconsistent  with  any  inten- 
tion on  their  part  to  declare  the  contract  abandoned.  We  submit  then, 
on  the  whole,  that  the  canal  company  had  not  the  power  on  the  30th 
of  September,  to  .declare  on  the  faith  and  foundation  of  a  certificate 
granted  the  30th  July  previous,  that  John  Randel  had  abandoned  his 
contract. 

Mr.  Jones,  for  defendants,  in  reply. 

Much  has  been  said  about  our  admissions  under  the  demurrers  as 
establishing  fraud  and  hardship,  and  it  has  even  been  argued  that  the 
admissions  necessary  to  be  made  in  order  to  raise  the  legal  questions 
are  to  be  taken  as  so  many  confessions  of  fact,  and  operate  to  take 
away  that  very  defence  which  they  were  made  to  set  up.  Admis- 
sions! How?  Why  they  are  mere  hypothetical  concessions,  argu- 
menti  gratia,  depeaiding  in  truth  on  the  decision  of  the  demurrers  for 
their  force.  Thus  a  party  may  be  estopped  by  his  deed  to  set  up  a 
defence  which  his  plea  shows  to  be  a  very  good  defence,  but  for  the 


Kandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  267 

estoppel,  yet  his  demurrer,  according  to  the  argument  on  the  other 
side,  admits  the  sufficiency  of  the  defence  notwithstanding  the  estop- 
pel, and  in  fact  destroys  that  defence  which  it  was  the  very  object 
of  the  admission  to  set  up.  The  plaintiff's  counsel  give  an  undue 
weight  to  these  admissions.  They  establish  nothing.  They  present 
simply  a  question  of  law  to  the  court,  whether  on  certain  facts  which 
are  admitted  only  for  the  purpose  of  stating  the  question,  the  plain- 
tiff has  set  out  a  proper  claim  or  the  defendant  a  sufficient  defence. 

The  contract  may  be  divided  into  two  great  provisions,  all  the  rest 
are  subsidiary,  affirmatory,  restrictive  or  explanatory:  First,  to  do 
the  work:  Second,  to  pay  for  it.  The  great  purpose  and  object  of 
the  other  clauses  are  to  enforce  the  faithful  performance  of  these  two 
covenants.  Was  it  competent  for  these  parties  to  stipulate  not  only 
that  one  should  do  and  the  other  pay,  but  for  an  exclusive  and  con- 
clusive rule  by  which  the  rights  of  both  might  be  ascertained  and 
definitively  fixed  without  further  redress?  If  there  be  any  principle 
settled  this  is  settled.  The  question  then  is  not  what  it  was  compe- 
tent for  the  parties  to  agree  upon,  but  have  they  contracted  to  this 
effect.  Otway  and  Holdip,  2  Modern  266,  has  been  cited.  The 
ground  of  that  decision  is  that  the  party  prevented  the  execution  of 
his  covenant  by  not  naming  an  attorney.  Here  it  is  not  that  the 
company  prevented  the  inspection  and  ascertainment  of  the  work, 
damages,  &c.,  but  that  another  person  did  not  certify,  or  more  gener- 
ally still,  that  no  certificate  has  been  made.  Taylor  and  Brewer, 
1  Maul.  &  Selw.  has  been  explained  by  supposing  that  it  was  not  a 
legal  obligation  to  pay  but  a  mere  promise  referable  to  the  honor  or 
discretion  of  the  party.  It  does  not  so  appear  from  the  case.  The 
quantum  of  remuneration  is  left  to  the  liberality  of  the  committee, 
but  there  was  a  legal  obligation  to  make  some  remuneration.  Yet  an 
action  could  not  be  sustained  without  an  award  fixing  the  compensa- 
tion which  was  a  condition  precedent. 

Breaches  are  assigned  on  five  clauses  of  this  contract.  To  all  seven- 
teen of  the  breaches  the  defendants  have  pleaded  in  bar  the  certi- 
ficate of  neglect  and  subsequent  declaration  of  abandonment.  The 
questions  then  are,  first,  on  the  construction  of  the  contract,  and, 
secondly,  whether  the  breaches  are  well  assigned.  I  shall  consider 
the  three  clauses  of  inspection,  prevention  and  deviation  together. 
Do  these  clauses  make  the  company  responsible  for  the  conduct  of 
the  engineer  in  doing  acts  which  he  is  authorized  to  do  by  the  mu- 
tual agreement  of  the  parties,  and  for  their  common  benefit?  The 
averments  are  that  the  engineer  did  not  do  these  acts,  or  that  they 
were  not  done.  In  no  part  of  the  pleading  is  it  intimated  that  this 
default  of  the  engineer  was  occasioned  by  the  defendants.  The  broad 
question  therefore  is  whether  the  company  are  bound  for  his  acts. 
They  call  him  our  engineer,  our  servant,  our  agent.  Admitted. 
But  is  he  exclusively  our  agent  in  reference  to  these  matters?  Our 
servant  may  be  the  mutual  agent  of  John  Randel  and  ourselves  if  the 
contract  between  us  makes  him  so.  If  he  is  our  agent,  exclusively, 
it  follows  that  what  he  was  to  do  as  our  agent  we  could  do  without 
him.  The  rule  is  universal ;  what  a  man  can  do  by  his  agent  he  may 
do  himself.     It  would  follow,  therefore,  that  the  defendants  in  this 


268  Bandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

case  were  authorized  to  inspect  and  estimate  and  certify,  which  is 
contrary  to  the  terms  of  the  contract  It  is  agreed  that  the  works 
shall  be  inspected ;  the  agreement  of  both,  a  mutual  covenant  equally 
binding  on  both.  How  can  it  be  that  either  party  is  peculiarly 
bound?  It  may  be,  as  in  Otway  and  Holdip,  that  there  is  an  im- 
plied covenant  that  neither  party  shall  do  any  act  to  j^revent  the  mu- 
tual agent  from  doing  his  duty ;  but  in  such  case  the  pleadings  should 
aver  a  prevention.  The  breach  assigned  on  the  prevention  covenant 
is  an  attempt  to  have  the  damages  ascertained,  in  a  mode  different 
from  the  contract;  without  certificate.  It  avers  that  R'andel  was 
prevented,  and  that  damages  arose,  which  were  not  certified.  Was 
the  engineer  ever  called  on  for  a  certificate?  He  was  not  bound  to 
give  a  certificate  but  on  a  claim  of  damage.  If  he  was  called  on  and 
refused  would  the  breach  be  good?  I  say  not;  for  he  is  the  judge  of 
the  claim;  and  his  refusal  to  certify  is  a  judgment  in  the  case  that 
nothing  is  due.  Prima  facie  the  absence  of  the  certificate  is  fatal  to 
the  claim  of  damage.  But  if  it  is  contended  that  the  engineer  has 
not  refused,  but  merely  neglected  to  certify,  then  Handel  breaks  his 
covenant  by  coming  into  court  instead  of  looking  to  the  engineer  for 
redress  in  the  mode  agreed  upon.  I  conclude  then  that  these  breaches 
are  founded  on  a  plain  misconstruction  of  the  contract,  and  are  bad. 

What  acts  amount  to  a  violation  of  the  clause  which  the  court  have 
considered  a  covenant  in  relation  to  time  ?  I  can  easily  imagine  a 
breach  of  that  covenant,  but  not  by  the  acts  here  relied  on.  If  the 
company  had  asserted  the  right  to  make  the  contractor  complete  the 
work  in  less  than  four  years,  and  without  any  certificate  turned  him 
off,  at  a  shorter  period  it  would  be  a  breach.  But  an  abandonment  on 
a  certificate  can  have  no  such  effect.  It  has  no  relation  to  the  time 
clause.  It  is  admitted  that  the  plea  is  good  if  well  pleaded ;  that  is, 
if  the  declaration  of  abandonment  was  regular  on  the  certificate,  it  is 
a  good  answer  to  all  the  breaches  to  which  it  is  pleaded.  But  it  is  ob- 
jected that  the  plea  itself  shows  the  abandonment  to  have  been  irregu- 
lar, by  reason  of  the  delay  and  the  conduct  of  the  company  after 
certificate.  In  point  of  law  and  on  principles  of  special  pleading  that 
interval  does  not  appear.  The  time  stated  in  the  plea  does  not  tie 
the  defendants  down,  on  the  trial  they  might  prove  an  abandonment 
on  the  Slst  of  July  or  any  other  time.  It  does  not  therefore  legally 
and  conclusively  appear  from  the  plea  that  the  abandonment  was  on 
the  30th  of  September.  The  time  is  laid  under  a  videlicet.  We  are 
not  even  bound  to  prove  that  the  certificate  was  on  the  30th  of  July. 
But  the  replication  does  not  state  an  interval  of  two  months  between 
the  certificate  and  abandonment,  and  this  opens  a  consideration  of 
what  we  are  authorized  by  the  contract  to  do ;  whether  this  power  of 
abandonment  is  restricted  as  the  plainiiff  contends,  and  if,  by  the 
terms  or  meaning  of  the  contract,  the  abandonment  must  necessarily 
be  an  act  following  immediately  on  the  certificate ;  an  act  of  instan- 
taneous and  continuous  succession.  Have  we,  in  short,  exercised  this 
power  as  by  the  contract  we  were  authorized  to  use  it,  or  so  irregu- 
larly and  illegally  as  to  destroy  the  right  to  exercise  it  at  all? 

Has  the  word  on  the  force  attributed  to  it  by  the  argument  on  the 
other  side.    On,  simply  means  in  reference  to  the  certificate;  foun- 


I 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  269 

ded  upon  it  as  a  basis  or  authority.  Suppose  the  determination  is  to 
be  in  a  reasonable  time ;  What  is  a  reasonable  time  ?  How  settled.  It 
must  be  governed  by  the  contract  and  the  character  of  the  work. 
Not  like  cases  arising  on  bills  or  notes  or  policies  of  insurance.  But 
there  are  terms  in  this  contract  which  show  that  this  immediate  action 
was  not  necessary.  It  gives  the  power  of  abandoning — an  abiding, 
continuing  power  not  to  be  divested  but  at  the  will  of  the  company. 
To  say  that  this  power  must  be  exercised  instantly  is  to  take  it  away 
in  the  very  breath  in  which  it  is  given,  and  to  destroy  that  discretion 
which  the  contract  confessedly  gives  to  the  company.  That  discretion 
cannot  be  exercised  without  allowing  time  to  deliberate  and  decide 
prudently.  Our  construction  of  the  contract  is  more  liberal  to  the 
contractor  than  theirs  According  to  their  construction  the  company 
was  obliged  to  destroy  Eandel  the  moment  the  certificate  was  given. 
The  certificate  was  as  an  accusation  or  charge  of  negligence  made 
against  the  contractor  by  the  engineer  before  the  company;  the  inter- 
val between  it  and  the  abandonment  was  properly  occupied  with  in- 
vestigating its  truth  and  into  the  necessity  of  putting  an  end  to  the 
contract,  in  hearing  the  contractor's  defence.  Whilst  this  investiga- 
tion was  going  on  the  contract  ex  necessitate  continued ;  working  un- 
der it  and  paying  for  the  work  necessarily  followed,  and  there  was 
every  inducement  for  Randel  to  work  more  diligently,  whilst  the  com- 
pany were  deliberating  on  his  conduct  as  contractor ;  yet  by  a  solecism 
in  argniaent  these  acts  are  assigned  as  a  waiver  of  the  power  on  the 
part  of  the  company  to  declare  the  abandonment. 

Of  what  is  this  a  waiver?  Of  the  contract,  the  certificate,  or  the 
power  to  abandon.  I  can  readily  understand  how  a  party  can  waive  a 
right  on  consideration  or  for  an  equivalent.  No  such  thing  here. 
Why  is  the  receipt  of  rent  by  landlord  a  waiver  of  notice  to  quit? 
Because  it  treats  the  party  as  a  tenant,  and  not  as  a  trespasser.  Have 
we  accepted  or  done  any  thing  here  inconsistent  with  full  power  to 
abandon?  We  have  accepted  his  services  and  he  payment  for  his 
work,  but  how  ?  In  execution  of  a  subsisting  contract.  The  certificate 
here  did  not  create  any  forfeiture.  In  the  case  of  leases,  the  non-pay- 
ment of  rent  or  other  conditions  broken  constitute  the  forfeiture. 
The  entry  or  ejectment  are  mere  remedies  for  the  forfeiture.  The  ten- 
ant becomes  a  trespasser  from  the  moment  of  condition  broken,  and 
the  acts  which  dispense  with  the  forfeiture  operate  as  an  estoppel  in 
pais,  because  they  treat  him  not  as  a  trespasser,  but  as  a  tenant. 

The  question  of  waiver  is  a  matter  of  law  for  the  court,  and  is  not 
to  be  left  to  the  jury.  If  there  be  a  doubt  in  relation  to  the  facts,  the 
jury  may  find  them  under  the  direction  of  the  court,  and  the  court 
will  pronounce  whether  they  amount  to  a  waiver ;  so  a  dictum  of  Jus- 
time  Mansfield  in  Taunton  can  by  no  means  be  admitted  as  law. 
(The  argument  on  these  demurrers  occupied  six  days.) 

Chief  Justice  Clayton  delivered  the  following  opinion  of  the  court. 

Clayton,  Ch.  J.  To  put  the  true  oonstruqtion  on  the  contract  be- 
tween John  Eandel  and  the  Chesapeake  and  Delaware  Canal  Com- 
pany, it  will  be  necessary  to  look  through  the  whole  instrument,  to  see 
its  rreneral  nature  and  design,  in  order  to  discover  what  was  the  real 


270  Handel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

meaning  and  intention  of  the  parties;  and  when  we  have  gathered 
from  it  that  intention,  it  must  be  the  rule  of  our  decision.  No  settled 
form  of  words  is  necessary  to  create  a  covenant.  Any  words  in  a 
sealed  instrument  by  which  a  party  manifests  an  intention  to  become 
bound  to  another  to  do  or  not  to  do  an  act,  either  by  himself  or  a  third 
person,  if  the  act  be  possible,  and  not  immoral  or  unlawful,  will  make 
a  covenant,  and  the  law  will  hold  him  to  his  undertaking,  however  in- 
artificial the  words  may  be  which  he  has  used,  and  covenant  will  lie. 

(Inspection  clause.)  The  plaintiff  on  his  part  covenants  to  con- 
struct and  make  a  certain  portion  of  the  Chesapeake  and  Delaware 
Canal,  and  the  defendants  on  their  part  covenant  to  pay  him  the  stip- 
ulated prices.  This  is  a  work  of  great  magnitude,  requiring  great 
labor,  the  employment  of  vast  numbers  of  men,  and  great  capital. 
It  is  an  undertaking  which  no  contractor  in  this  country,  with  our 
limited  fortunes,  could  hope  to  accomplish,  relying  on  his  own  funds. 
Hence  the  necessity  of  the  stipulation  in  the  contract  for  speedy  and 
frequent  payments  during  the  progress  of  the  work,  and  hence  the 
necessity  of  fixing  upon  some  mode  by  which  the  amount  of  these 
stipulated  payments  should  be  ascertained.  The  very  existence  of 
the  plff.  as  a  contractor  depended  on  the  fulfillment  of  this  part  of  the 
contract.  Delay  was  ruin:  it  would  necessarily  in  its  consequences 
work  a  forfeiture  of  the  contract.  It  may  not  be  needless  to  remark 
that  the  plaintiff  did  not  hold  himself  out  to  the  defendants  as  a  man 
capable  of  accomplishing  the  task  which  he  had  undertaken  upon  his 
own  capital.  The  contract  shows  that  they  were  aware  of  his  inabi- 
lity in  this  respect,  and  they  were  aware  of  the  necessity  of  furnish- 
ing him  with  money  as  the  work  proceeded.  It  is  readily  seen  from 
this,  how  important  it  was  to  the  plaintiff  that  the  defendants  should 
agree  with  him  to  select  a  person  who  should  examine  and  inspect 
the  work  during  its  progress,  and  estimate  the  number  of  cubic  yards 
of  excavation  and  embankment,  and  certify  such  estimate,  upon 
which  only  could  the  plff.  demand  his  semi-monthly  payments  for 
work  done.  It  is  true  that  the  two  clauses  connected  with  this  sub- 
ject, and  which  seem  naturally  to  belong  to  and  form  a  part  of  each 
other  are  disjoined,  having  interposed  between  them  the  proviso  in 
relation  to  the  ten  per  cent,  and  the  clause  relating  to  the  revision  of 
prices.  Connect  these  two  clauses  relating  to  the  same  matter  of 
contract,  and  they  read  thus :  "  And  the  party  of  the  second  part 
(the  defts.)  agrees  to  pay  the  party  of  the  first  part,  his  executors, 
admrs.  and  assigns,  for  completely  performing  this  contract,  the 
sums  which  are  stated  as  the  cost  thereof  in  the  said  estimate  of  the 
party  of  the  first  part,  under  the  conditions  and  provisions  expressed 
in  the  annexed  schedule,  payments  to  he  made  every  fortnight  ac- 
cording to  the  said  schedule  for  the  work  which  the  engineer  of  the 
company  shall  certify  to  have  been  actually  done  by  the  party  of  the 
first  part."  "  And  the  said  works,  during  their  progress,  shall  be 
carefully  examined  and  inspected;  and  to  prevent  misunderstanding 
and  disputes  it  is  hereby  agreed  that  Benjamin  Wright,  Esquire,  or 
some  other  competent  engineer,  to  be  selected  by  the  party  of  the 
second  part,  shall  be  the  inspector  of  the  said  works,  and  shall  esti- 
mate the  number  of  cubic  yards  of  excavation,  and  also  of  embank- 


Randel,  Jun.  vsTChes.  «Del!c  an  al  Company. 

ment,  and  his  estimate  thereof,  when  certified  to  the  party  of  the 
second  part,  shall  be  final  and  conclusive  between  the  parties." 

It  was  said  in  the  argument  by  the  counsel  for  the  defendants, 
that  this  latter  clause  was  introduced  into  the  contract  for  the  pecu- 
liar benefit  of  the  canal  company;  but  we  think  that  no  sutficient 
reason  was  assigned  for  arriving  at  this  result.  The  canal  company, 
being  a  corporation,  cannot  act  of  itself,  but  must  act  throu^gh  its 
agents.  The  plaintiff  having  undertaken  to  execute  a  work  for  them 
upon  their  own  lands,  any  agent  whom  they  might  appoint  for  that 
purpose,  had  a  right  to  go  upon  the  lands  to  inspect  the  work,  esti- 
mate the  number  of  cubic  yards  of  excavation  and  embankment,  and 
certify  such  estimate  to  his  employer.  No  agreement  of  the  parties 
was  necessary  to  legalize  such  acts  or  to  give  any  such  power.  It 
existed  independently  of  any  contract.  So  far  at  least  no  contract 
was  necessary;  so  far  it  was  not  beneficial  to  the  company.  It  is 
true  the  assent  of  Randel  was  necessary  to  make  the  certificate  oblig- 
atory and  conclusive  upon  him.  But  if  this  had  been  an  express 
covenant  on  the  part  of  the  defendants,  drawn  in  as  strong  language 
as  could  have  been  used  to  make  it  their  covenant  only,  by  which 
they  engaged  to  appoint  an  inspector  who  should  examine  and  in- 
spect the  works,  should  estimate  the  number  of  cubic  yars  of  exca- 
vation and  embankment;  should  certify  that  estimate,  and  that  the 
certificate  should  be  conclusive  on  the  parties,  by  sealing  the  instru- 
ment he  would  have  given  his  assent  as  strongly  as  if  he  had  in  ex- 
press terms  agreed  to  it.  We  have  shown  how  infinitely  important 
it  was  to  the  plaintiff  that  his  work  should  be  inspected  in  its  prog- 
ress, and  its  amount  estimated  and  certified.  We  have  already  seen 
by  the  first  clause  of  the  contract,  just  quoted,  that  the  company,  in 
express  terms,  covenant  to  pay  every  fortnight  for  work  which  the 
engineer  of  the  company  shall  certify  to  have  been  actually  done. 
We  do  not  lay  much  stress  on  the  words  "  which  the  engineer  of  the 
company  shall  certify ; "  but  we  do  attach  must  importance  to  the 
positive  and  sole  covenant  of  the  company  that  they  will  pay  every 
fortnight  for  work  which  their  engineer  shall  certify  to  be  done.  If 
there  was  nothing  else  in  this  contract,  an  ordinary  man  in  forming 
his  opinion  of  this  clause,  and  not  choosing  to  exercise  his  subtlety 
and  ingenuity,  would  not  hesitate  to  say  that  as  the  company  had 
engaged  to  pay  every  fortnight  for  work  actually  done,  and  as  the 
delay  of  payment  would  not  be  honest,  would  be  contrary  to  good 
faith,  and  might  be  ruinous  in  its  consequences  to  the  other  party, 
they  at  the  same  time  meant  to  engage  that  their  own  engineer  should 
perform  this  service.  For  we  deny  that  the  engineer,  or  any  other 
servant  of  the  company,  in  the  outset,  and  before  he  had  taken  upon 
himself  this  especial  duty  of  inspecting,  estimating  and  certifying, 
would  be  liable  to  the  plff.  for  not  performing  this  duty.  At  the 
same  time  we  do  not  wish  to  be  understood  as  denying  the  position, 
that  where  one  gratuitously  undertakes  a  trust,  he  is  responsible  for 
the  faithful  execution  of  it.  Besides,  it  does  not  appear  on  this  rec- 
ord that  Wright,  or  any  other  person,  ever  assumed  this  trust;  of 
course  no  one  could  be  responsible.  Here  is  a  wrong  without  a  rem- 
edy, unless  the  company  is  responsible.  But  Benjamin  Wright,  or 
some  other  competent  engineer,  to  be  selected  by  the  company,  is  to 


272  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

be  the  inspector.     One  may  be  a  very  competent  engineer,  and  yet 
not  be  very  competent  to  respond  in  damages  to  a  party  aggrieved. 

The  next  clause  commences  with  a  positive  and  express  engage- 
ment that  the  works  shall,  during  their  progress,  be  carefully  exam- 
ined and  inspected.  It  has  been  admitted  in  the  argument  that  the 
company  were  bound  to  select  an  inspector.  Who  makes  the  under- 
taking here  that  the  works,  during  their  progress,  shall  be  carefully 
examined  and  inspected?  Not  Randel,  for  the  other  side  has  the  se- 
lection, and  they  may  not  choose  to  select.  So  far,  these  covenants 
are  all  on  the  part  of  the  company.  Then  come  the  words  "  and  to 
prevent  misunderstanding  and  disputes,  it  is  hereby  agreed  that  Ben- 
jamin Wright,  or  some, other  competent  engineer  to  be  selected  by 
the  party  of  the  second  part,  shall  be  the  inspector  of  the  said  works, 
and  shall  estimate  the  number  of  cubic  yards  of  excavation  and  of  em- 
bankment, and  his  estimate  thereof,  when  certified  to  the  party  of 
the  second  part,  shall  be  final  and  conclusive  between  the  parties." 
It  was  admitted  in  the  argument  at  the  bar,  that  by  virtue  of  this 
clause  the  company  did  covenant  to  select  an  inspector.  It  is  ob- 
vious, however,  that  the  words  "and  to  prevent  all  misunderstand- 
ing and  disputes  it  is  agreed,"  which  it  is  contended  in  relation  to 
other  matters  in  the  clause,  constitute  a  mutual  and  reciprocal  agree- 
ment between  the  parties  in  relation  to  the  same  thing,  affording  no 
right  of  action  to  either  against  the  other,  under  any  circumstances, 
equally  apply  to  the  selection  of  an  inspector  as  to  the  other  matters 
in  the  clause;  and  if  it  can  be  fairly  collected  from  the  words  used, 
that  it  was  the  intention  of  the  company  to  covenant  for  the  selection 
of  an  inspector,  it  may  be  as  fairly  collected  that  they  intended  to 
bind  themselves  for  his  performance  of  his  duty.  Suppose  the  words 
to  be  the  words  of  both  parties,  still  they  may  be  taken  distribu- 
tively,  and  used  as  the  words  of  each  as  far  as  the  sense  of  the  par- 
ties and  the  true  meaning  of  the  contract  shows  that  each  meant  to 
bind  himself  to  the  other,  either  to  abide  its  terms  or  to  perform  its 
stipulations.  For  what  purpose  did  the  company  bind  themselves  to 
appoint  an  inspector?  They  had  the  power  to  do  so  independently 
of  the  contract;  why  covenant  to  do  it?  Does  this  not  show  that  it 
was  intended  for  the  benefit  of  Randel?  Why  else  should  he  insist 
upon  it  as  a  matter  of  contract?  It  was  all-important  to  him.  His 
existence  as  a  contractor  depended  on  the  inspector's  examining  the 
works,  estimating  the  number  of  cubic  yards  and  certifying  the 
amount;  for  without  his  certificate  he  could  not  demand  a  cent  for 
work  done,  and  upon  frequent  and  punctual  payments  depended  the 
execution  of  his  work,  and  his  continuance  as  a  contractor.  If  the 
words  in  this  clause  are  to  be  considered  as  the  words  of  both  par- 
ties, we  think  we  have  a  right  to  distribute  them  to  each  as  the  na- 
ture of  the  undertaking,  and  the  intention  of  the  parties  show  that 
each  meant  to  bind  himself  to  the  other.  The  intention  of  the  par- 
ties fairly  collected  from  this  contract  seems  to  us  to  be  this:. the 
canal  company,  on  their  part,  agreed  with  Randel  that  they  would 
appoint  an  inspector,  that  he  should  examine  the  works,  that  he 
should,  at  least  once  a  fortnight,  estimate  the  number  of  cubic  yards 
of  work,  and  that  he  should  certify  the  amount ;  and  Randel,  on  his 
part,  agreed  that  the  certificates  of  this  agent  of  the  company  should 


Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  273 

be  conclusive  evidence  against  him.  To  the  canal  company  this  was 
a  most  favorable  agreement.  They  had  the  selection  of  the  person; 
and  the  only  restriction  upon  them,  in  this  respect,  was  that  he 
should  be  a  competent  engineer.  He  was  the  creature  of  their  will, 
removable  at  pleasure,  and  dependent  upon  them  for  his  compensa- 
tion. Their  undertaking  was  not  much,  the  risk  was  nothing;  they 
only  engaged  that  this  agent  of  their  own  creation  should  perform  the 
duty  assigned  him  by  this  agreement.  To  Eandel  this  was  of  essen- 
tial importance.  It  is  true  when  this  agent  once  undertook  the  trust 
confided  to  him,  when  he  assumed  and  attempted  to  perform  the  duty 
of  inspecting,  estimating  and  certifying,  he  was  responsible  to  the 
plaintiff  for  the  faithful  and  honest  execution  of  the  task.  The  cer- 
tificate when  given,  however  false,  dishonest  or  malicious,  the  plain- 
tiff had  agreed  should  be  conclusive  evidence  against  him,  and,  per- 
haps, his  only  remedy  for  this  wrong  would  be  a  suit  against  the  in- 
spector. Still  if  the  inspector  would  not  or  did  not  perform  this 
duty  in  some  way,  the  company  were  liable  to  the  plaintiff  on  their 
covenant. 

(Prevention  clause.)  The  next  clause  to  be  considered  is  in  the 
following  words:  "And  it  is  further  agreed  as  aforesaid,  that  in  case 
the  party  of  the  first  part  shall,  from  the  default  of  the  party  of  the 
second  part,  in  any  particular  be  prevented  from  pursuing  the  due 
and  best  mode  of  execuiing  this  contract,  or  from  entering  upon  or 
flooding  lands  for  that  purpose,  the  pecuniary  damage  sustained  by 
him  in  consequence  thereof,  shall  be  certified  by  the  engineer  of  the 
party  of  the  second  part  for  the  time  being,  and  on  his  certificate, 
which  shall  be  final  and  conclusive  between  the  parties,  the  party  of 
the  second  part  shall  make  to  the  party  of  the  first  part  such  reason- 
able compensation  and  allowance  as  by  the  said  certificate  may  be 
ascertained  and  fixed." 

It  was  remarked  upon  with  much  earnestness  by  the  counsel  for 
the  defendants,  that  the  words,  ''  and  it  is  further  agreed  as  afore- 
said," refer  to  the  next  immediately  preceding  clause  in  the  con- 
tract which  commences  "  and  it  is  further  agreed  between  the  par- 
ties;" and  they  contend  that  this  clause  should  be  construed  in  the 
same  manner  as  if  the  words,  "between  the  parties,"  were  added  to 
the  word  "aforesaid."  Granted;  and  what  is  gained  by  it?  Every 
covenant  is  an  agreement  between  the  parties  to  the  instrument,  for 
there  can  be  no  covenant  or  agreement  except  between  two  or  more 
persons ;  one  undertaking  that  a  thing  shall  or  shall  not  be  done,  and 
the  other  assenting  that  it  shall  or  shall  not  be  done. 

Most  of  the  remarks  which  we  made  on  the  clauses  already  con- 
sidered are  equally  applicable  to  the  one  now  under  consideration. 
The  present  is  more  strongly  marked.  It  is  so  clearly  a  covenant 
that  we  cannot  see  how  any  one  can  doubt  it.  The  persons  who 
framed  this  clause,  who  assented  to  it,  and  who  affixed  to  it  the  seal 
of  the  corporation,  must  have  meant  something  by  it,  and  if  they 
were  reasonable  men  they  must  have  intended  that  that  something 
was  a  reasonable  thing.  What  is  it  as  their  counsel  now  contend? 
It  is  that  if  John  Eandel,  from  the  default  of  the  canal  company, 
shall  be  prevented  from  pursuing  the  due  and  best  mode  of  executing 
his  contract,  or  from  entering  upon  or  flooding  lands  for  that  purpose, 

•55 


274  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

the  pecuniary  damage  sustained  by  him  in  consequence  thereof 
(assuming  damage  to  be  sustained  by  their  default)  they  will  make 
reasonable  compensation  and  allowance  for,  if  their  engineer  for  the 
time  being  will  certify.  This  is  the  construction  given  to  this  con- 
tract by  the  defts.  Is  it  a  reasonable  construction?  Can  such  have 
been  the  intention  of  the  parties?  Can  such  intention  be  collected 
from  the  language  used?  If  from  the  default  of  the  company  the 
pllf.  receives  injury,  the  pecuniary  damage  sustained  by  him  will  be 
paid  by  them,  if  their  engineer  will  certify !  Now  what  is  the  real 
language  of  the  parties?  That  in  case  the  plff.  shall  from  the  default 
of  the  defts.  in  any  particular  be  prevented  from  pursuing  the  due 
and  best  mode  of  executing  the  contract,  or  from  entering  upon  or 
flooding  lands  for  that  purpose,  the  pecuniary  damage  sustained  by 
him  in  consequence  thereof  shall  be  certified  by  their  engineer  for 
the  time  being,  and  on  his  certificate,  which  shall  be  final  and  con- 
clusive between  the  parties,  the  defts.  shall  make  to  the  plff.  such 
reasonable  compensation  and  allowance  as  by  the  said  certificate  may 
be  ascertained  and  fixed.  No  language  can  be  stronger  or  more 
clearly  show  the  intention  of  the  parties  than  this.  The  company 
undertook  for  the  engineer,  that  he  should  ascertain  and  fix,  and  cer- 
tify, the  pecuniary  damage  sustained  by  the  plaintiff  in  consequence 
of  their  default,  and  when  thus  ascertained  they  would  pay  it.  Any 
other  construction  renders  the  clause  nugatory.  It  assumes  that  pe- 
cuniary damage  has  been  sustained  by  their  default,  but  it  is  not  to  be 
paid  unless  upon  the  certificate  of  their  engineer,  and  hence  the  neces- 
sity of  engaging  that  the  engineer  should  ascertain  and  certify  the  dam- 
age. Without  this  the  plff.  would  confessedly  be  wronged  without 
a  remedy.  This  ought  not  to  be  allowed  unless  the  clear  and  manifest 
intention  of  the  parties,  to  be  collected  from  the  language  of  the  con- 
tract, forces  this  construction.  The  language  used  does  not;  on  the 
contrary,  it  forbids  it.  Common  sense  forbids  it.  Any  other  con- 
struction leaves  the  plff.  aggrieved  without  remedy;  for  we  must  re- 
peat that  he  had  no  redress  against  the  engineer  for  refusing  to  take 
npon  himself  the  office  of  ascertaining  and  certifying  the  damages. 
Besides,  what  persons,  when  entering  into  an  instrument  of  writing, 
ever  think  of  looking  to  any  other  than  the  parties  to  it  for  redress  in 
case  of  its  violation. 

It  is  scarcely  necessary  to  show  the  high  importance  of  this  provi- 
flion  to  the  plff. ;  one  without  which  he  could  not  get  along  with  his 
undertaking;  one  without  which  he  was  remediless,  however  great 
and  serious  his  loss;  one  without  which  his  entire  operations  may 
have  been  suspended;  with  five  hundred  or  a  thousand  laborers,  and 
as  many  carts  and  horses  in  his  emplo3rTnent,  all  thrown  idle  on  his 
hands;  and  yet  he  is  to  knock  in  vain  at  the  doors  of  this  corporation 
for  compensation,  unless  he  comes  with  the  certificate  of  their  engi- 
neer in  his  pocket,  when  no  one  was  under  any  obligation  to  him  to 
make  this  certificate.  We  forbear  making  any  further  remarks  on 
this  clause,  because  we  did  decide  at  the  last  term  that  this  was  the 
■covenant  of  the  defts.  and  that  they  were  answerable  to  the  plff.  for  a 
violation  of  it,  if  such  violation  has  occurred;  and  we  think  that  the 
counsel  ought  not  again  to  have  brought  it  in  question.     (Ante  153.) 

The  next  clause  is  that  in  which  it  is  agreed  that  the  time  within 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  275 

which  it  shall  be  incumbent  on  the  plff.  fully  to  perform  and  complete 
the  said  contract  shall  not  be  taken  to  be  less  than  four  years  from 
and  after  the  first  day  of  May  next  ensuing  the  date  of  the  articles  of 
agreement.  This  clause  was  fully  considered  at  the  last  term,  and 
the  court,  in  giving  judgment  upon  it,  assigned  their  reasons  at  some 
length  for  the  determination  to  which  they  had  come.  It  will  not  be 
necessary,  therefore,  now  to  repeat  those  reasons.  We  will  merely 
state  the  conclusion  to  which  we  came:  that  this  was  a  covenant  on 
the  part  of  the  canal  company  to  allow  the  plff.  four  years  from  the 
first  of  May  fully  to  complete  his  contract ;  and  that  consequently  any 
positive  act  of  disturbance  (we  do  not  mean  acts  of  non-feazance,  but 
some  effective  application  of  power)  by  which  the  plff.  might  unlaw- 
fully or  unjustly  be  driven  off  by  the  defts.  or  obstructed  in  carrying 
on  the  work  for  any  length  of  time,  would  be  taking  the  time  to  be 
less  than  four  years.  They  covenant  to  allow  him  four  years  from 
the  first  of  May  to  complete  the  work;  and  he,  on  his  part,  impliedly 
covenants  to  finish  the  work  in  that  time.  If  a  suit  were  brought 
against  him  on  this  implied  covenant  for  not  finishing  the  work  with- 
in the  stipulated  time,  it  would  be  a  good  defence  to  the  action  if  he 
could  show  that  he  was  prevented  from  doing  it  by  the  acts  of  the 
company;  and  if  they  unlawfully  interrupt  him,  so  that  he  cannot  and 
does  not  complete  the  work  within  the  time,  they  do  not  allow  him 
the  time  agreed  on,  but  take  it  to  be  less  than  four  years.  The  other 
clause,  which  provides  against  the  plff's.  being  prevented  from  pursu- 
ing the  best  mode  of  executing  his  contract  by  the  default  of  the  com- 
pany, looks  to  rather  a  different  state  of  things.  It  is  more  general  and 
comprehensive  in  its  terms,  and  seems  to  have  intended  to  provide  in 
a  more  especial  manner  against  the  acts  of  third  persons,  although 
the  Avords  "  if  he  shall  be  prevented  in  any  particular  "  might  seem  to 
comprehend  most  of  the  cases  that  might  arise.  The  acts  of  third 
persons  to  which  we  allude  are  such  as  these :  where  persons  through 
whose  lands  the  canal  might  pass,  and  from  whom  no  title  or  license 
liad  been  obtained  by  the  company,  might  obstruct  and  resist  the  plff. 
from  entering  upon  their  lands  to  execute  the  work;  this  would  be 
such  a  prevention  through  the  default  of  the  company  as  would  make 
them  liable  on  this  covenant.  So  any  positive  act  of  obstruction  of 
their  own  would  be  a  breach  of  it,  for  it  would  be  by  their  default. 

It  has  been  said  that  these  are  not  covenants  upon  which  an  action 
would  lie,  but  mere  submissions  to  arbitration.  "We  think  other- 
wise; for  it  has  scarcely  a  feature  of  a  submission  to  arbitration. 
Without  noticing  the  strangeness  of  the  notion  that  one  party  should 
agree  to  submit  all  his  rights  to  the  determination  of  a  person  to  be 
selected  at  pleasure  hj  the  adverse  party,  it  is  sufficient  to  say  that 
at  the  time  this  contract  was  entered  mto,  no  differences  or  disputes 
had  or  could  have  arisen;  the  most  that  could  be  contended  for  by 
the  defts.  is,  that  it  is  a  prospective  agreement  to  submit  future  dif- " 
ferences  as  they  might  arise.  And  we  understand  the  law  to  be  set- 
tled, that  a  prospective  agreement  to  refer  all  matters  in  dispute 
which  may  hereafter  arise  cannot  be  shown  as  a  defence  to  an  action 
for  the  recovery  of  such  disputed  matter,  for  the  superior  courts  will 
not  suffer  themselves  to  be  ousted  of  their  Jurisdiction  by  the  private 
agreement  of  the  parties.     1  Wils.  129;  8  T.  Rep.  139;  2  Ves.  Jr. 


276  Handel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

129;  Mitchel  vs.  Harris;  2  Bos.  &  Pul.  131;  2  Atk.  569;  2  Bro. 
ch.  cases  336;  1  Saund.  PI.  &  Ev.  177,  179.  This  is  not  the  case 
of  a  reference  actually  depending,  or  of  a  reference  made  and  deter- 
mined. Even  in  the  case  of  a  clear  submission  of  existing  disputes 
either  party  has  a  right  to  revoke  the  submission.  It  is  true  he  is 
answerable  on  his  agreement  to  submit;  but  after  the  revocation  this 
would  be  no  defence  in  an  action  to  recover  the  disputed  matter. 
His  only  liability  is  on  his  agreement  to  abide  by  the  reference;  if  he 
violates  that  agreement  it  is  not  a  defence  to  an  action  for  the  thing 
disputed.  We  agree  so  far  that  if  the  engineer  or  inspector  had  given 
his  certificate,  that  that  certificate,  by  the  agreement  of  the  parties, 
was  conclusive  evidence  on  both;  and  that  in  regard  to  work  done,  or 
for  other  matters  within  his  competency  to  certify  it  was  the  only 
species  of  proof  substituted  by  the  agreement  of  the  parties  for  aU 
other;  but  if  he  neglected  or  refused  to  certify,  then  the  company  be- 
came responsible  to  the  plaintiff  for  all  the  damage  which  he  had  sus- 
tained by  this  neglect  or  refusal,  or  for  want  of  this  certificate. 

(The  waiver.)  To  the  plaintiff's  replication  to  the  defendants' 
third  plea  they  have  put  in  a  general  demurrer;  and  the  question  sub- 
mitted to  the  court  is  whether  the  facts  stated  in  this  replication  are 
sufficient  in  law.  It  is  not  necessary  now  to  state  these  facts,  because 
they  are  sufficiently  understood.  The  plea  to  which  this  is  an  answer 
alledges  that  Benjamin  Wright,  on  the  30th  of  July,  1825,  and  before 
and  since  was  the  engineer  in  chief  for  the  time  being  of  the  defend- 
ants, and  that  on  that  day  he  was  of  opinion  that  the  plaintiff  did  un- 
reasonably neglect  to  prosecute  his  contract,  and  that  afterwards,  on 
the  same  day,  he  did  in  and  by  his  certificate  certify  his  said  opinion 
to  the  defendants,  and  that  on  the  30th  of  September  following  the 
defendants  did,  thereupon,  on  the  said  certificate,  determine  the  said 
contract  to  be  abandoned  by  the  plaintiff,  of  which  said  certificate 
and  determination  the  plaintiff  had  notice  on  the  first  of  October,  by 
means  where  of  the  defendants  were  entirely  exonerated  from  every 
obligation  imposed  on  them  by  the  said  articles  of  agreement,  except 
to  pay  for  work  already  done.  The  replication  in  answer  to  this  con- 
fesses these  facts,  but  attempts  to  avoid  them  by  the  matters  which  it 
discloses,  and  concludes  by  alledging  a  waiver  of  the  certificate  and  a 
ratification  of  the  contract.  The  question  then  is,  did  the  company 
waive  the  certificate  and  ratify  and  confirm  the  contract? 

It  was  insisted  at  the  bar,  that  as  the  power  to  declare  the  abandon- 
ment on  the  certificate  of  the  engineer  was  founded  on  or  derived 
from  a  deed,  it  could  only  be  dispensed  with  or  waived  by  matter  of 
as  high  a  nature  as  that  which  gave  or  secured  the  power,  that  is  ta 
say,  by  an  instrument  under  seal,  or  by  some  act  of  the  defts.  legally 
inconsistent  with  the  power  secured.  With  regard  to  the  first  prop- 
osition, we  think  it  untenable  on  principle.  It  is  true  that  when  a 
duty  accrues  by  the  deed,  and  is  ascertained  at  the  time  of  the  mak- 
ing of  the  writing,  as  by  covenant  or  bond  to  pay  a  sum  of  money, 
in  that  case  the  duty,  which  is  certain,  takes  its  essence  and  operation 
originally  and  solely  by  the  writing,  and  therefore  it  must  be  avoid- 
ed by  matter  of  as  high  a  nature.  But  where  no  certain  duty  accrues 
by  the  deed,  but  a  wrong  or  subsequent  default,  together  with  the 


pv 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  277 


deed,  gives  an  action  to  recover  damages  for  such  wrong  or  default, 
such  wrong  or  default  may  be  discharged  by  parol,  and  accord  with 
featisfaction  would  be  a  good  plea.  As  if  a  tenant  covenants  to  repair 
a  house,  and  an  action  is  brought  against  him  for  not  repairing,  the 
covenant  does  not  give  the  plff.  at  the  time  of  making  it  any  cause 
of  action;  but  the  wrong  or  default  in  not  repairing  the  house,  to- 
gether with  the  deed,  give  an  action  to  recover  damages  for  want  of 
reparation.  The  action  is  not  merely  founded  on  the  deed,  but  on  the 
deed  and  the  subsequent  wrong,  which  wrong  is  the  cause  of  action, 
and  for  which  damages  shall  be  recovered ;  and  in  every  action  where 
compensation  is  demanded  by  way  of  damages,  such  right  of  action 
may  be  discharged  by  parol.  So  here  the  power  claimed  is  not  founded 
on  or  derived  solely  from  the  deed.  It  arises  from  matter  subsequent 
to  the  deed,  the  neglect  of  the  plff.  to  prosecute  the  work,  and  the  con- 
sequent certificate  of  the  engineer.  The  deed  originally  and  of  itself 
does  not  give  the  power  to  declare  the  abandonment;  but  the  certifi- 
cate, coupled  with  the  deed,  does.  This  certificate  then  may  be  waived, 
or  dispensed  with  by  parol,  and  there  is  no  unbending  rule  of  law  to 
forbid  it.  The  first  proposition  having  been  shown  to  be  incorrect,  we 
think  the  second  is  equally  fallacious  and  unwarranted  by  authority. 
According  to  the  counsel's  idea  of  legal  inconsistency,  what  act  of  the 
company  would  be  legally  inconsistent  with  the  power  to  declare  the 
abandonment  after  certificate,  short  of  lying  by  and  witnessing  the 
entire  completion  of  the  work?  That  surely  would  be  a  waiver  of 
the  certificate,  because  the  power  derived  from  it  never  after  that 
could  be  exercised.  Whether  waiver  be  the  most  appropriate  term  that 
can  be  used  for  the  occasion  is  a  matter  of  but  little  importance,  so 
that  we  understand  the  notion  intended  to  be  conveyed  by  it.  It  mat- 
ters not  whether  the  thing  in  controversy  be  said  to  be  yielded,  aban- 
doned, resigned,  foregone,  waived,  or  lost;  we  are  equally  understood 
when  using  either  of  the  terms.  The  books  use  the  word  waiver  when 
speaking  of  subjects  like  the  present.  The  principle  runs  through  the 
law,  and  is  applicable  to  a  variety  of  cases  in  addition  to  those  men- 
tioned at  the  bar.  It  may  not  be  necessary  to  mention  them  here,  be- 
cause it  would  lead  to  much  prolixity.  It  is  manifest  that  whenever 
a  discretionary  power  is  given,  as  in  this  case,  from  the  nature  of  the 
thing  itself,  it  may  be  waived,  or  not  exercised  at  all,  for  otherwise  it 
would  not  be  a  discretionary  power,  to  be  exercised  or  not,  as  the  party 
might  think  best,  but  an  obligation  which  he  could  not  dispense  with. 
This  certificate,  then,  or  the  power  to  take  advantage  of  it,  might  be 
waived.  What  acts  will  amount  to  a  waiver?  Whenever  one  person 
has  an  election  to  do  or  not  to  do,  an  act  in  which  the  rights  and  in- 
terests of  another  are  concerned,  he  is  bound  to  make  his  election  so 
as  to  be  least  prejudicial  to  the  rights  and  interests  of  that  other ;  and 
if  by  his  unreasonable  delay  the  rights  of  that  other  become  impli- 
cated and  he  receives  injury,  who  ought,  in  justice,  in  good  faith,  and 
in  law,  to  bear  the  burthen  or  sustain  the  loss  —  the  party  injured,  or 
he  who  has  caused  the  injury  by  his  own  negligence  ?  Common  sense 
and  the  law,  which  is  founded  on  the  highest  good  sense,  say  the  de- 
faulter ;  that  he  who  is  innocent  and  in  no  fault  shall  not  be  prejudiced 
by  the  negligence  of  the  other;  that  whenever  the  right  of  election  is 


278  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

attempted  to  be  so  negligently  exercised  that  a  manifest  and  irrepar- 
able injury  must  follow,  the  law  interposes  and  says  you  have  waived 
your  right  to  elect;  you  cannot  now  exercise  it  without  manifest  injus- 
tice; you  are  therefore  concluded,  and  shall  not  exercise  it  at  all. 
What  is  the  state  of  the  case  here?  The  facts  upon  which  we  are 
called  on  to  give  our  opinion  on  this  demurrer  are  to  be  found  in  the 
replication  to  the  defts.  third  plea.  On  the  30th  of  July  the  engineer 
certified  his  opinion  to  be,  that  the  plff.  had  unreasonably  neglected 
to  prosecute  his  contract ;  that  on  the  30th  of  September  following  the 
defts.  declared  the  contract  to  be  abandoned,  and  that  on  the  first  of 
October  they  gave  notice  to  the  plff.  of  this  declaration  of  abandon- 
ment. The  other  facts  stated  in  the  replication,  material  to  be  here 
considered,  are  these:  that  during  all  the  time  between  the  30th  of 
July  and  the  1st  of  October  the  plff.  was  diligently  prosecuting  his 
contract,  and  did  with  great  expense  and  labor  prosecute  the  said  con- 
tract, under  the  inspection,  by  and  with  the  permission,  and  by  and 
under  the  direction  of  the  said  company ;  and  that  during  that  period 
the  defts.  paid  for  such  work  divers  sums  of  money;  that  the  work 
thus  performed  was  less  profitable  and  more  disadvantageous  than  the 
work  remaining  to  be  done;  and  that  the  work  remaining  to  be  done 
after  the  1st  of  October  was  th'<t  portion  of  the  whole  work  to  be  per- 
formed which  was  most  profitable  and  advantageous  to  him.  These 
facts  are  admitted  to  be  true  by  the  demurrer.  This  is  the  naked  con- 
duct of  the  defts.  not  explained  or  excused  by  their  pleading.  With 
the  certificate  of  the  engineer  in  their  possession  from  the  30th  of 
July  to  the  30th  of  September,  not  a  word  of  it  is  whispered  to  the 
plff.  while  he  is  laboring  on  the  canal  during  these  two  months  at  re- 
duced prices,  prosecuting  his  contract  at  great  expense,  and,  as  he  al- 
ledges  in  his  replication,  under  the  immediate  inspection  of  the  com- 
pany, they  never  inform  him  of  the  certificate  till  the  first  of  October, 
when  notice  is  given  him  that  they  have  declared  his  contract  to  be 
abandoned.  What  evidence  the  defts.  may  have  it  in  their  power  to 
produce  is  not  for  us  to  inquire  on  this  demurrer.  We  can  only  look 
to  the  record  and  gather  the  facts  from  it.  It  may  be  observed  also, 
that  by  the  agreement  of  the  parties,  ten  per  cent,  was  reserved  for 
contingencies,  no  part  of  which  was  to  be  paid  to  the  plaintiff  till  the 
entire  completion  of  the  work ;  and  in  case  of  the  forfeiture  of  the  con- 
tract he  was  never  to  get  any  part  of  it ;  so  that  upon  all  the  work  per- 
formed during  those  two  months  ten  per  cent,  is  gained  by  the  defts. 
and  is  consequently  lost  by  the  plff. ;  or  at  least  his  claim  to  it  is  for- 
feited. 

We  have  said  that  the  defts.  might  waive  the  benefit  of  this  certifi- 
cate. What  acts  of  theirs  will  amount  to  a  waiver?  If  thev  had  kept 
the  certificate  in  their  possession  till  within  a  short  time  of  the 
entire  completion  of  the  work,  no  one  would  say  that  thev  had  not 
waived  it :  the  injustice  in  that  case  would  be  too  prlarinff  not  to  strike 
every  one.  We  are  not  to  measure  the  extent  of  the  injury,  nor  to 
enquire  whether  it  be  great  or  fmiall.  And  what  is  the  injustice  on 
the  other  side  ?  If  the  plff.  still  continued  unreasonably  to  neglect  his 
work,  and  so  often  as  he  did  neglect  the  work,  the  engineer  was  at 
hand  to  certify  the  fact.  But  it  may  be  that  on  the  30th  July  the 
plff.  did  unreasonably  neglect  to  prosecute  his  contract;  and  yet  on 


p 


Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  279 

the  30th  of  September  might  have  been  prosecuting  it  with  vigour; 
so  that  the  engineer  would  not  then  have  given  his  certificate. 

The  defendants  after  getting  the  certificate  were  entitled  to  a  rea- 
sonable time  to  determine  whether  they  would  take  advantage  of  it 
or  not.  Yet  we  think  that  a  delay  of  two  months,  when  that  delay 
is  not  explained  or  excused,  was  not  a  reasonable  time.  We  are 
therefore  of  opinion  that  the  certificate  and  the  consequent  power  of 
declaring  the  abandonment,  have  been  waived." 

Harrington,  J.,  applied  the  principles  of  this  opinion  to  the  plead- 
ings in  the  case,  and  gave  judgment  for  the  plaintiff  overruling  the 
demurrers  to  the  first,  second,  third,  fourth,  fifth  and  sixth  breaches 
of  the  second  count;  and  the  fourth,  eighth  and  fourteenth  breaches 
of  the  third  count : 

And  judgment  for  the  demurrers,  the  defendants,  on  the  first, 
second,  third,  fifth,  sixth,  ninth,  tenth,  eleventh,  twelfth  and  thir- 
teenth breaches  of  the  third  count. 

Monday,  December  9th,  1833. 

The  demurrers  having  been  disposed  of,  the  cause  proceeded  be- 
fore a  jury;  who  were  empanneled  and  sworn  to  try  the  issues  joined, 
and  to  assess  the  damages  on  the  seventh  count,  on  which  judgment 
was  given  at  the  last  term,  and  an  order  made  in  the  nature  of  a 
writ  of  inquiry  for  a  jury  attending  at  this  court,  to  inquire  and  re- 
turn the  damages,  costs,  &c. 

The  jury  were  John  Clark,  James  Roberts,  Bayraon  Deakyne, 
Thomas  Morrison,  George  B.  Meteer,  Israel  Garretson,  Thomas  Rob- 
inson, Jacob  Whiteman,  John  W.  Evans,  Arthur  J.  Whiteley,  James 
C.  Mansfield  and  George  Foote. 

The  issues  in  fact,  which  were  numerous,  may  be  ascertained  from 
the  following  synopsis;  referring  to  the  pleadings  as  stated  more  at 
length,  ante,  &c. 

First  count.     On  the  lock  contract.     Plea,  non  est  factum;  issue. 

Second  count.     General  plea  to  the  count,  non  est  factum;  issue. 

First  breach.     On  the  inspection  covenant. 

Plea  No.  4,  (same  as  3.)  The  abandonment.  Rep.  Waiver. 
Issue. 

Second  breach.    On  the  covenant  for  estimating  the  work  done. 
Plea  4.     The  abandonment.     Rep.     Waiver.     Issue. 
Third  Breach.     On  the  prevention  covenant. 
Plea  4.     The  abandonment.     Rep.     Waiver.     Issue. 
Fourth  and  fifth  breaches.     On  the  same  covenant;  varied.     Same 
plea,  replication  and  issue. 

Sixth  breach.    On  the  time  covenant.     Same  issue. 

Third  Count.     General  plea  to  the  count,  non  est  factum.     Issue. 

Fourth  breach.     On  the  prevention  covenant. 

Plea  4.     The  abandonment.     Rep.     Waiver.    Issue. 

Fifth  breach.    Non-payment  of  work  certified. 

Plea  7.    Payment.    Rep.  and  Issue. 

Seventh  breach.     Non-pavment  of  work  certified. 


280  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

Plea  13.  The  revision  of  prices  and  payment  according  to  the 
revision  schedule.  Rep.  That  the  revision  was  obtained  by  fraud 
and  covin.    Rejoinder  and  Issue. 

Eighth  breach.     On  the  prevention  covenant. 

Plea  4.     The  abandonment.    Rep.    The  waiver.    Issue. 

Fourteenth  breach.    On  the  time  covenant.    Same  issue. 

Fourth  count.     Single  breach  on  the  inspection  clause. 

Plea  16.  The  appointment  of  an  inspector.  General  traverse  and 
issue. 

Plea  20.  Ditto  with  averment  that  he  did  inspect,  &c.  Greneral 
traverse  and  issue. 

Plea  21.     The  abandonment.     General  traverse  and  issue. 
"     22.     The  abandonment.     Rep.     The  fraud  and  covin.     Re- 
joinder and  issue. 

Fifth  count.  Single  breach,  that  no  estimate  of  the  work  was 
made,  &c. 

Plea  17  like  plea  No.  16  to  fourth  count  and  same  issue. 

"     20,  21,  22.     Same  as  to  the  last  count  and  same  issues. 
Sixth  Count.     On  the  inspection  clause. 
Plea  18.     Non  est  factum.     Issue. 

"     19.     Same  as  No.  16  to  fourth  count  and  same  issue. 

"    20,  21,  22,  same  ut  ante. 

To  prove  the  execution  of  the  contract,  plff.  gave  in  evidence  the 
deposition  of  John  Fritz,  one  of  the  subscribing  witnesses.  He  also 
offered  in  evidence  the  deposition  of  Paul  Beck,  jr.,  who  was  not  a 
subscribing  witness,  but  at  the  time  of  its  execution,  a  member  and 
director  of  the  canal  company.    The  evidence  was  objected  to. 

Mr.  Frame.  The  testimony  of  Paul  Beck  is  irregular,  for  he  is 
examined  to  the  execution  of  the  contract  which  ought  to  be  proved 
by  the  subscribing  witnesses,  and  also  to  the  effect  or  contents  of  the 
contract  which  must  be  proved  by  the  contract  itself.  The  execu- 
tion of  the  commission  is  irregular.  No  commissioner  named  on  our 
part.  The  interrogatories  are  leading  and  have  been  excepted  to  for 
that  reason.  Third  interrogatory.  Did  or  did  not  the  company  say 
so  and  so?  It  suggests  the  answer;  inquiries  not  for  facts  but  conver- 
sations. Did  you  not  understand  the  director  by  such  language  to 
mean  so  and  so?  The  inquiry  should  be  for  the  words  and  the  jury 
are  to  construe  them.  The  interrogatories  not  only  leading  and  in- 
quire for  conclusions,  but  they  go  into  matters  not  relative  to  the 
cause,  the  private  feelings  of  Wright  towards  Randel.  This  is  purely 
a  civil  suit;  an  action  of  covenant;  it  is  not  a  case  for  vindictive 
or  exemplary  damages;  nor  is  it  a  case  with  which  the  ill-feelings  or 
malice  of  the  parties,  and  especially  of  Benjamin  "Wright,  has  any 
thing  to  do.  Question,  Whether  witness  ever  heard  Benjamin 
Wright  or  the  directors  say  the  prices  were  revised  for  a  particular 
purpose?  Now,  what  purpose  is  this  for  but  to  insinuate  a  fraudulent 
motive,  either  in  the  company  or  in  Wright,  and  to  aggravate  the 
damages  by  showing  malice.  It  can  possibly  have  no  reference  to 
any  issue  but  that  on  the  seventh  breach,  third  count,  which  is 
whether  the  certificate  of  revision  was  obtained  from  Wright  by  any 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  281 

fraud  practiced  on  him  by  the  company.  Now  this  inquiry  does 
not  tend  to  prove  that  issue,  but  that  Wright  was  connected  with  the 
company  in  defrauding  Kandel;  a  particeps  fraudis. 

J.  M.  Clayton.  The  commission  issued  in  this  case  on  the  28th 
of  May,  18 —  to  Charles  J.  IngersoU,  Thomas  Janvier  and  Thomas 
J.  Wharton.  The  record  shows  that  on  the  24th  of  May  the  de- 
fendants named  Thomas  J.  Wharton  as  their  general  commissioner 
in  Philadelphia.  Beck's  evidence  proves  that  he  was  a  member  and 
director  of  the  company.  He  can  prove  the  seal  and  the  execution 
of  the  contract  from  his  knowledge  as  a  member  of  the  board,  and 
his  testimony  is  the  admission  of  a  party.  1  Stark.  Ev.  123.  The 
interrogatories  are  not  leading  further  than  is  necessary  to  direct  the 
mind  of  the  Avitness  to  the  subject  of  inquiry,  and  this  is  proper. 
Then  as  to  the  relevancy  of  the  testimony.  The  inquiry  on  the 
seventh  count  is  what  damage  we  have  sustained  by  reason  of  their 
having  taken  the  time,  &c.;  any  act  exhibiting  a  settled  purpose  on 
the  part  of  the  company  to  drive  Eandel  off  is  important  in  ascer- 
taining the  damage.  The  revision  of  prices  was  the  first  great  step 
tending  to  this  object;  and  the  object  itself  is  essential  to  be  dis- 
closed. The  issues  on  the  fourth,  fifth  and  sixth  counts.  Plea 
twenty-one  alledges  that  Wright  was  of  the  opinion  that  Eandel 
neglected,  &c.,  and  did  certify  that  opinion.  The  replication  flatly 
traverses  the  whole  of  the  plea.  The  opinion  is  an  essential  part  of 
it;  and  any  thing  that  proves  it  was  not  bona  fide  his  opinion  proves 
the  issue.  On  the  replication  of  waiver  the  jury  are,  under  the  direc- 
tion of  the  court,  to  try  the  question  of  unreasonable  neglect.  Is  it 
not  material  in  the  proof  of  this  issue  to  show  that  the  company  and 
their  agents  embarrassed  the  contractor  in  every  way  in  their  power, 
with  the  view  of  making  him  abandon  the  work?  The  revision  ac- 
cording to  the  contract  was  to  be  made,  if  at  all,  for  the  purpose  of 
conforming  the  prices  to  the  labor;  now,  if  this  testimony  shows 
that  it  was  not  made  for  this  purpose,  but  to  ruin  Eandel  and  drive 
him  off,  is  it  not  relevant?  But  on  general  principles  I  contend  that 
all  the  acts  and  declarations  of  this  conipany  and  its  agents,  in  ref- 
erence to  the  subject  matter  of  this  suit,  are  evidence  against  them. 

IngersoU.  This  is  an  action  of  covenant  broken;  we  are  to  prove 
the  breach.  If  in  doing  so  a  malicious  motive  is  developed,  we  can't 
help  it ;  we  are  not  to  be  prevented  from  proving  a  breach  of  contract 
because  malice  is  mixed  with  it,  nor  from  proving  their  conduct  and 
acts  because  they  are  fraudulent.  The  opinion  of  Wright  in  giving 
the  certificate  of  neglect  is  in  issue;  the  bona  fide  opinion:  malice  dis- 
proves that  opinion..  As  to  the  7th  count,  the  jury  sets  as  an  in- 
quest of  damages  merely;  the  court  act  merely  as  moderators,  as  the 
sheriff  in  England  in  executing  a  writ  of  inquiry.  I  doubt,  then,  in 
relation  to  that  part  of  the  case,  whether  the  defts.  have  the  right  to 
object  to  this  testimony. 

Bayard,  in  reply.  These  interrogatories  show  an  intention  to  lead 
the  witness;  to  put  in  his  mouth  the  very  words  he  is  desired  to  de- 
pose to.  They  further  call  for  the  understanding  of  the  witness,  his 
conclusions  and  inferences.  As  to  the  certificate,  it  is  admitted  that 
Wright  acted  as  an  umpire  or  arbitrator  in  giving  it;  and  the  courts 
of  law  cannot  investigate  the  conduct  of  an  arbitrator  in  reference  to 


282  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

an  award  of  matters  in  pais.  The  opinion  of  the  engineer  is  of  no 
importance,  for  it  is  not  traversable;  the  certifying  the  opinion  bound 
the  parties,  whether  it  was  so  or  not.  The  certificate  of  neglect  is 
the  proof  of  the  fact  agreed  upon  by  the  parties,  and  neither  it  nor 
the  opinion  is  enquirable  into.  We  do  not  contend  that  an  act  con- 
stituting a  breach  cannot  be  proved  because  it  is  malicious,  but  only 
that  declarations,  or  even  acts  not  amounting  to  a  breach,  cannot, be 
given  in  evidence  for  the  purpose  of  inferring  a  malicious  intention 
to  break  the  covenant. 

On  examining  the  interrogatories,  the  court  were  of  opinion  that 
many  of  them  were  leading,  and  suppressed  the  deposition  on  this 
ground,  without  deciding,  at  present,  the  other  questions  raised  in 
arguing  the  objections.  Written  exceptions  had  been  filed  to  these 
interrogatories,  and  the  plff.  had  full  notice  of  the  objection. 

The  plff.  now  offered  the  contract  in  evidence,  as  sufficiently 
proved  by  Fritz's  deposition.  It  was  objected  to,  not  on  this  ground, 
but  for  a  variance  from  the  contract  declared  on. 

Frame.  The  contract  declared  on  purports  to  be  a  contract  be- 
tween two  parties:  John  Eandel  of  the  first  part,  and  the  Chesapeake 
and  Delaware  Canal  Company  of  the  second  part,  entered  into  by 
both,  executed  by  both,  that  is  to  say,  under  the  hand  and  seal  of  R. 
and  under  the  corporate  seal  of  the  company  and  hand  of  its  presi- 
dent. The  contract  offered  in  evidence  is  not  signed  or  sealed  by 
Randel;  it  is  an  unexecuted,  incomplete  contract.  The  conclusion 
of  the  paper  itself  shows  that  it  is  incomplete.  "  In  witness  whereof 
the  parties  have,"  &c. —  showing  that  the  contractor  was  designed  to 
be  executed  by  both  parties. 

J.  M.  Clayton.  We  have  not  professed  to  set  out  the  original  con- 
tract; that  is  in  the  defts.  possession,  and  we  could  not  get  hold  of  it. 
But  we  had  a  copy,  and  more  than  ji  copy,  a  counterpart,  executed 
by  the  canal  company,  under  its  corporate  seal  and  the  hand  of  its 
president.  And  we  have  not  even  assumed  to  set  this  out  by  its 
tenor,  but  only  in  substance.  We  have  declared  on  certain  articles  of 
agreement  concluded  and  agreed  upon  by  and  between  John  Randel, 
Jr.  of  the  first  part  and  the  Chesapeake  and  Delaware  Canal  Company 
of  the  second  part,  "  the  counterpart  of  which  said  articles  of  agree- 
ment, sealed  with  the  corporate  seal  of  the  said  the  Chesapeake  and 
Delaware  C'anal  Company,  and  signed  by  the  president  thereof,  the 
said  John  Randel,  Jr.  now  brings  into  court,  the  date  whereof  is  the 
same  day  and  year  aforesaid." 

The  court  overruled  the  objection  and  admitted  the  contract  in 
evidence;  whereupon  an  exception  was  prayed  and  granted. 

Plff.'s  counsel  offered  in  evidence  an  answer  in  chancery  of  the 
canal  company  to  the  bill  of  Clement,  Blackstock  &  Co.  They  pro- 
duced the  bill  to  lay  a  foundation  for  the  admission  of  the  answer. 
Objected  to. 

Bayard.  This  answer  is  in  another  case  and  between  other  par- 
ties. It  is  not  on  oath,  and  does  not  fall  within  the  rule  of  evidence 
which  applies  only  to  a  statement  of  a  party  on  oath.  The  answer 
of  a  corporation  is  like  a  bill  —  the  mere  statement  of  counsel. 
2  Stark  29;  Roscoe  25;  1  Mad.  ch.  212. 


Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  283 

Clayton.  This  is  the  first  time  I  have  heard  that  an  answer  of  a 
corporation  was  not  a  statement  of  the  truth,  but  the  suggestion  of 
counsel.  It  avails' them  as  the  answer  of  an  individual  on  oath;  is 
sufficient  to  dissolve  an  injunction  when  it  denies  the  equity  of  the 
bill.  The  answer  of  a  peer  is  not  on  oath,  but  on  honor;  yet  it  is 
evidence  against  him  as  if  on  oath.  Its  admissibility  as  evidence 
does  not  depend  on  its  being  sworn  to,  but  as  the  admission  of  the 
party.  A  hill  is  evidence  when  the  party  is  connected  with  it  by 
proof.  It  is  treated  as  the  suggestion  of  counsel,  unless  the  complain- 
ant's privity  is  shown,  and  then  it  is  evidence  against  him  as  his  ad- 
mission. So  an  answer  is  evidence  as  the  admission  of  the  party, 
whether  sworn  to  or  not.  4  Wash.  Rep.  601 ;  2  Bay.  R.  10 ;  Angel  & 
Ames  396;  1  Gilh.  4;  PeaU  53;  1  Starh  285,  8;  1  Phil.  Ev.  283; 
Cowp.  591;  2  Com.  Dig.  307;  1  Vernon  117. 

"  A  bill  filed  against  a  corporation  to  discover  writings.  The  defts. 
answer  under  their  common  seal,  and  so,  not  being  sworn,  will  an- 
swer nothing  in  their  own  prejudice.  Ordered  that  the  clerk  of  the 
company  and  such  principal  members  as  the  plff.  shall  think  fit  an- 
swer on  oath,  and  that  a  master  settle  the  oath."  This  explains  the 
meaning  of  Mad.  213. 

Bayard.  Notwithstanding  the  authority  of  Gilbert,  it  is  now  the 
established  doctrine  that  the  bill  is  the  mere  allegation  of  counsel, 
and  not  evidence.  The  answer  of  a  corporation  stands  on  the  same 
ground.  The  members  or  officers  cannot  be  supposed  to  have  indi- 
vidual knowledge  of  all  the  matters  to  which  their  answer  may  neces- 
sarily extend;  it  does  not  therefore  imply  the  certainty  of  an  indi- 
vidual answer.  It  is  this  knowledge  of  the  party,  confirmed  his  oath, 
which  makes  such  an  answer  evidence.  At  all  events,  an  express 
privity  of  the  company  ought  to  be  shown;  that  is,  that  they  exam- 
ined and  adopted  the  answer. 

Jones  objects  to  the  evidence  on  general  principles;  it  is  res  inter 
alias  acta  and  irrelevant  to  this  cause.  It  is  remarkable  that  an  in- 
stance of  the  admission  of  such  an  answer  cannot  be  shown.  The 
case  in  Cowper  depends  on  the  relation  of  mother  and  child. 

The  Court.  The  objection  that  it  is  res  inter  alias,  &c.  is  not  avail- 
able; the  authorities  on  that  subject  are  conclusive,  for  that  applies  to 
all  the  cases.  An  answer  is  evidence,  not  because  it  is  on  oath, 
thougli  this  may  give  it  greater  weight,  but  as  an  admission  of  the 
party.  The  answer  of  a  peer  is  evidence  against  him,  though  not  on 
oath.  The  honor  of  a  peer  and  the  seal  of  a  corporation  are  substi- 
tutes for  the  oath.  Their  answer  thus  filed  gives  them  all  the  bene- 
fits of  an  answer  on  oath,  and  should  subject  them  to  its  liabilities. 
Ic  is  true  that  where  the  answer  is  under  seal  it  may  not  be  sufficient 
evidence  in  case  of  a  bill  for  a  discovery,  for  there  is  no  obligation 
on  them  to  make  the  discover}',  and  therefore  a  clerk  or  individual 
member  is  allowed  to  be  sworn.  This  appears  to  be  the  meaning  of 
Maddock;  if  it  goes  further  we  cannot  give  that  authority  our  sanc- 
tion. Whether  a  hill  is  evidence  is  still  a  mooted  question.  Gil- 
bert and  Starkie  are  for  it,  and  Peake  and  Phillips  are  against  it. 
The  opinion  of  Phillips  is  founded  on  a  case  in  7  Term  Eeports,  3 
which  is  little  more  than  a  dictum  of  Lord  Kenyon. 

The  answer  was  admitted  and  read. 


284  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

The  plflf's  counsel  called  on  defts.  to  produce  certain  papers  which 
they  had  been  notified  to  produce.  The  defts.  counsel  offered  the 
papers  as  evidence,  but  not  merely  for  the  inspection  of  the  plff. 

The  court  said  that  if  the  plff.  inspected  the  papers  called  for  it 
would  make  them  evidence;  but  not  if  he  merely  called  for  them 
without  using  or  inspecting  them.    1  Stark.  Ev.  360 ;  Roscoe  6. 

Certificates  for  work  done  prior  to  30th  July,  1825,  produced  and 
read: 
No. 


1,  28th  Maj, 

1824, 

for  $17,727  80  signed  by  B.  Wright. 

2,  28d  June. 

<( 

16,682  99 

ditto. 

8,  8d  July 

<i 

6,865  78 

ditto. 

4,  17th  July, 

it 

8,496  69  8J 

[gned  by  Henry  Wright. 

6,  8l8t  July, 

(( 

6,808  22 

B.  Wright. 

6,  16th  Aug. 

ft 

9,924  61 

ditto. 

7,  28th  Aug. 

<( 

10,782  81 

ditto. 

8,  18th  Sept 

i< 

8,888  66i 

ditto. 

9,  9th  Oct. 

<< 

7,176  16 

H.  Wright. 

10,  28d  Oct. 

ft 

6,897  281 

ditto. 

11,  6th  Nov. 

<( 

8.127  81 

ditto. 

12,  20th  Nov. 

<4 

2,636  57 

ditto. 

18,  4th  Dec. 

(( 

2,648  80 

ditto. 

14,  18th  Dec. 

l( 

8,128  82 

B.  Wright. 

16,  Ist  Jan. 

1826. 

8,226  161 

H.  Wright. 

16,  16th  Jan. 

(1 

8,778  83 

ditto. 

17,  29th  Jan. 

(1 

8,882  86i 

ditto. 

18,  12th  Feb. 

(( 

2,948  5H 

ditto. 

Force  stated  equivalent  to  460  men. 

19,  26th  Feb. 

II 

8,818  9U 

ditto. 

416  men,  91  teams  :  equal  to  688  men. 

20,  12th  Mar. 

II 

4,066  66 

H.  Wright. 
90  teams. 

21,  lost. 

6,648  78 

22,  8th  April, 

II 

4,781  761 

B.  Wright. 

28,  23d  April, 

II 

6,837  88 

H.  Wright. 

Force,  681 

men,  141  teams,  &c. 

24,  7th  May, 

(1 

6,697  041 

H.  Wright. 

416  men,  189  teams,  equal  to  861  men. 

26,  2l8t  May, 

11 

7,821  881 

H.  Wright. 
487  men,  174  teams. 

26,  4th  June, 

II 

8,598  021 

H.  Wright. 

169  teams 

equal  to  900  men. 

27,  18th  June, 

II 

6,852  00 

H.  Wright. 

28,  2d  July, 

II 

6,618  04 

D.  Livermore. 
842  men,  92  teams. 

29,  16th  July, 

(1 

4,649  601 

H.  Wright. 

866  men,  117  teams,  equals  600  men. 

80.  80th  July, 

II 

969  621 

H.  Wright. 

81,  18th  Aug. 

II 

7,818  22 

D.  Livermore. 
886  men,  110  teams. 

82,  27th  Aug. 

i< 

7,928  70 

D.  Livermore. 
408  men,  109  teams. 

88,  19th  Sept. 

ii 

2,269  02 

B.  Wright. 

Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  285 

No.  84,  24th  Sept.  1825,  5,295  68  H.  Wright. 

838  men,  71  teams,  equal  to  651  men. 
Whole  amount  of  work  certified,  $314,681  20i,  to  Sept.  24th,  1825. 
To  30th  July,  1825,  $183,764  58  )  Difference,  $40,626  93. 
To  15th  December,    224,291  51  ) 

The  final  certificate  for  work  done  was  called  for,  produced  and 
read.  Final  certificate,  dated  15th  December,  1825,  $224,291  51. 
B.  Wright. 

The  plff.  offered  in  evidence  the  lock  contract  declared  on  in  the 
first  count  of  the  narr.  The  contract  was  executed  by  E.  Wharton 
and  E.  M.  Lewis,  a  committee  on  behalf  of  the  company;  but  not 
under  the  seal  of  the  company.  He  also  offered  proof  of  the  execu- 
tion by  the  committee,  of  their  authority,  and  of  its  acceptance  and 
adoption  by  the  company.  He  called  on  defts.  to  produce  the  au- 
thority of  the  committee  under  the  notice  to  produce  papers.  The 
authority  being  produced,  appeared  to  be  a  resolution  of  the  board, 
but  not  under  seal. 

The  whole  evidence  was  objected  to  and  rejected;  the  instrument 
offered  not  being  under  seal. 

Deposition  of  William  S.  Eandel  offered  and  objected  to.  As  a 
foundation  for  the  objection,  defts.  offered  in  evidence  the  depositions 
of  Absolem  Townsend,  S.  Dewit  Bloodgood,  Stephen  Fondre  and 
Wm.  M.  Cushman,  taken  upon  a  commission  which  was  issued  for 
the  purpose  of  impeaching  the  deposition  of  Wm.  S.  Eandel.  Defts. 
depositions  read  by  consent,  saving  all  just  exceptions. 

The  commission  on  which  Eandel's  deposition  was  taken  was 
issued  to  Absolem  Townsend  and  S.  Dewit  Bloodgood  of  the  state  of 
New  York,  or  either  of  them,  commissioners  for  plff.  and  Ebenezer 
Baldwin,  commissioner  on  the  part  of  defts.  The  answers  to  all  the 
original  and  most  of  the  cross  interrogatories  were  authenticated  by 
the  signature  of  all  three  commissioners ;  the  residue,  and  most  of  the 
documents  referred  to  were  signed  only  by  Townsend  and  Blood- 
good, some  by  Townsend,  Bloodgood,  and  Isaac  Hamilton,  who  Jiad 
been  substituted  for  Baldwin  by  agreement.  The  commissioners 
employed  a  clerk.  It  appeared  from  the  defts.  depositions  that  the 
commissioners  commenced  taking  Eandel's  deposition  by  propound- 
ing the  interrogatories  to  him,  and  their  clerk  wrote  down  his  an- 
swers. He  was  sick  of  a  pulmonary  consumption,  and  it  soon 
became  apparent  that  he  could  not  bear  the  exertion  of  speaking  so 
much.  Baldwin,  the  defts.'  commissioner,  said  that  if  this  mode 
was  continued  Eandel  would  sink  under  it,  and  proposed  to  permit 
him  to  write  down  his  answers  at  his  leisure  as  his  strength  would 
permit.  Townsend  and  Bloodgood  insisted  on  going  on  as  they  had 
commenced  whatever  might  be  the  consequences;  but  Baldwin  ap- 
prehending they  would  be  fatal  to  the  deponent,  refused  to  go  on. 
Plff.'s  commissioners  then  assented  to  the  plan  proposed  by  Baldwin. 
After  the  answers  were  written  they  were  read  over  to  Eandel,  who 
was  too  weak  to  read  them  aloud,  and  he  corrected  them.  In  the 
course  of  the  examination  Baldwin  became  sick,  was  seized  with 
mania  a  potu,  and  his  friends  carried  him  off.  Hamilton  was  substi- 
tuted in  his  place. 

Bayard.     The  commission  is  personal  to  the  commissioners,  and 


286  Randel,  J  UN.  vs.  Ohes.  &  Del.  Canal  Company. 

does  not  authorize  them  to  employ  a  clerk  to  write  down  the  answers; 
it  is  a  power  that  cannot  be  delegated.  Much  depends  on  the  man- 
ner of  putting  down  the  witnesses  reply;  and  we  can't  guard  this, 
at  best,  defective  mode  of  taking  evidence  too  strictly. 

Second.  The  witness  was  permitted  to  give  depositions  prepared 
and  written  by  himself.  This  is  entirely  irregular  and  inadmissible 
especially  in  such  a  case  as  this.  The  witness  here  is  the  plaintiff's 
own  brother;  had  been  his  sub-engineer;  may  have  been  at  the  time 
in  the  habit  of  constant  intercourse  with  him.  It  is  no  answer  to  us 
that  the  commissioner  named  by  us  proposed  this  plan;  he  is  not  our 
agent  but  the  Agent  of  the  court.  Any  irregularity  in  him  is  as  fatal 
to  the  execution  of  the  commission  as  the-  irregularities  of  the  other 
commissioners.  He  is  like  an  arbitrator  named  by  the  party,  but 
appointed  by  the  court.  The  commissioner  cannot  receive  a  depo- 
sition prepared  by  the  witness.  Depositions  will  be  suppressed  if 
prepared  by  plaintiff's  attorney,  and  not  taken  down  by  the  commis- 
sioner from  the  witness.  The  execution  of  this  commission  obvi- 
ously took  many  days,  and  yet  it  does  not  appear  that  there  was  any 
adjournment.  If  the  commissioners  separate  without  an  adjournment 
the  commission  is  lost.  This  commission  is  a  joint  one  to  Townsend 
and  Bloodgood,  or  either  of  them,  for  plaintiff,  and  Baldwin  for  de- 
fendants. Such  a  commission  must  be  executed  by  all  the  commis- 
sioners or  it  will  be  suppressed.  This  was  never  returned  by  Bald- 
win; and  only  in  part  executed  by  him.  Peters'  C.  C.  Rep.  88;  3 
Wash.  C.  C.  Rep.  109;  Beame's  orders  in  ch'y.  187;  1  Newland's  Ch, 
Pr.  275;  Ambler,  252;  lo  Vesey  380;  Gilbert's  Fomm  127,  9;  Newlin 
Ch.  Prac.  265;  3  Wash.  Rep.  31;  1  do.  43,  144;  4  do.  187. 

Clayton.  William  S.  Randel's  deposition  has  been  returned  near 
three  years;  opened,  published,  and  a  copy  actually  taken  by  the 
defendants.  During  the  life  of  the  witness  no  objection  was  made 
to  the  execution  of  this  commission,  and  no  exceptions  have  been 
filed  since.  Now  if  we  are  to  be  bound  here  by  the  rules  of  chan- 
cery practice,  let  us  have  all  of  them.  In  that  court  no  objection  can 
be  taken  to  depositions  unless  exceptions  are  filed  to  apprise  the  other 
side.  And  there  is  good  reason  for  this  rule.  If,  even  after  pub- 
lication in  this  case,  exceptions  had  been  filed  objecting  to  the  execu- 
tion of  this  commission,  we  might  have  taken  out  another  and  pro- 
cured this  important  testimony.  But  here  they  lie  by  with  copies  of 
our  depositions  in  their  possession;  make  no  olajection  to  theTn  until 
the  principal  witness  is  dead  and  the  trial  comes  on,  when  they 
spring  upon  us  the  depositions  of  Cushman,  a  discarded  clerk  of 
Handel's,  and  others  in  order  to  destroy  this  testimony.  Let  us  look 
a  little  at  the  execution  of  their  own  commission.  It  has  been  read 
reserving  objections.  The  chief  man  employed  in  its  execution  is 
Henry  D.  Gilpin,  the  solicitor  of  the  company,  their  agent  and  in 
their  pay.  This  is  fatal  to  their  own  commission  and  the  foundation 
of  their  objections  fails.  2  Mad.  413.  I  don't  deny  that  a  joint 
commission  must  be  executed  jointly.  How  is  the  case  here?  A 
commission  to  A  and  B  for  plaintiff,  and  to  C  for  defendants.  The 
three  commissioners  go  on  together  and  nearly  complete  the  com- 
mission, when  C  gets  drunk  and  goes  off,  and  the  defendants  agree 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  287 

to  substitute  another  person,  who  finishes  the  taking  the  deposition. 
If  plaintilf's  commissioners  attend  they  may  proceed  ex  parte  if  the 
defendants'  commissioners  wont  come.     1  har.  Chy.  324. 

'i  he  mode  of  taking  the  deposition  was  at  the  suggestion  of  the  de- 
fendant's commissioner,  and  it  was  justified  by  the  circumstances  of 
the  case.  There  can  be  no  rule  of  evidence  that  will  entirely  pre- 
vent the  taking  of  testimony,  or  require  the  violation  of  every  prin- 
ciple of  humanity,  as  would  have  been  done  by  compelling  the  wit- 
ness here  to  deliver  his  testimony  orally.  The  rule  is  that  where  the 
witness  prepares  his  answer  it  will  be  suppressed  unless  he  die,  or  it 
becomes  otherwise  impossible  to  get  his  testimony.  In  such  case  the 
rule  is  dispensed  with,  and  it  would  be  equally  dispensed  with  if  this 
was  the  only  mode  of  procuring  the  testimony  originally.  In  15 
Ves.  the  deposition  was  prepared  by  the  agent  of  the  party,  and 
suppressed  on  this  ground  chiefly.  That  and  Mad.  also  were  before 
publication.  As  to  the  deposition  being  taken  by  a  clerk.  So  are 
all  depositions  taken  in  New  York  where  they  practice  on  the  Eng- 
lish rules.  Defendants'  commission  impeaching  this  was  executed  by 
a  clerk.  To  say  that  a  clerk  shall  not  be  employed  would  be  to  pre- 
vent the  execution  of  such  commissions  as  this;  for  professional  men 
would  not  do  the  labor;  or  if  they  would,  the  expense  would  pre- 
vent their  being  employed.  The  commissioners  have  certified  the 
oath  of  the  clerk;  they  certify  also  their  own  qualification,  including 
the  oath  of  the  substituted  commissioner.  Though  strict  in  relation 
to  depositions,  the  courts  have  gone  far  to  sustain  them  in  case  of 
the  death  of  a  witness.  Where  a  witness  died  after  his  examination 
in  chief,  and  before  cross  examination,  the  court  refused  to  suppress 
his  deposition.    2  Mad.  ^13;  2  Sch.  (&  Lef.  15S. 

Rogers.  There  was  no  rule  in  the  Court  of  Common  Pleas  in  re- 
lation to  the  manner  of  executing  commissions  to  take  depositions. 
This  commission  was  issued  out  of  that  court  from  whence  the  cause 
has  been  transferred  to  this.  If  then,  in  the  absence  of  any  rule  in 
that  court,  we  are  to  refer  ourselves  to  the  English  rules  in  chancery, 
we  should  take  them  all.  Is  this  matter  of  objection  according  to 
these  rules  properly  before  this  court?  Should  not  the  defendants 
have  filed  exceptions,  or  articles  of  impeachment?  If  they  would  im- 
peach a  witness  they  must  file  articles  before  publication.  So  if  they 
object  to  the  mode  of  executing  the  commission,  they  were  bound  to 
file  exceptions  to  give  us  notice.  Irregularity  in  the  taking  of  depo- 
sitions cannot  be  objected  to  at  the  trial.  Even  in  the  English  courts 
the  same  strictness  is  not  observed  in  relation  to  commissions  exe- 
cuted out  of  England.  The  rules  yield  to  the  necessity  of  the  case. 
There  is  no  certain  rule  how  far  evidence  may  be  taken  from  notes. 
13  Ves.  511;  2  Ath.  190;  1  Eq.  Ca.  Ab.  102;  2  Coxe  205;  Har.  Ch'y.; 
Amb.  252. 

Ingersoll.  The  foundation  of  all  their  objections  is  the  commis- 
sion issued  21st  July,  1831,  to  H.  D.  Gilpin  and  others.  If  this 
foundation  fails  the  objections  fail.  It  was  executed  by  their  attor- 
ney and  agent,  and  is  not  admissible.  It  is  not  before  the  court. 
But  what  is  the  paper  attacked?  A  deposition  returned,  published, 
copied  three  years  ago.  The  deposition  of  a  man  in  consumption 
who  lived  twelve  months  or  more  after  it  was  taken,  but  is  nQ:iiv  dead. 


288  Randel,  Jun.  vs.  Ches,  &  Del.  Canal  Company. 

During  all  his  life  no  exceptions  filed.  A  commission  was  taken  out 
it  is  true,  to  inquire  into  the  mode  of  taking  this  deposition,  but  we 
knew  not  whether  it  was  executed.  It  was  kept  by  defendants  in 
their  pockets  until  yesterday.  The  witness  was  dying;  he  had  to  be 
indulged  with  writing  out  his  answer.  The  absolute  necessity  of  the 
case  is  sworn  to  by  the  commissioners.  And  we  know  that  in  this 
terrible  disease  the  patient  may  have  a  sound  mind  and  considerable 
bodily  energy,  without  being  able  to  talk  much.  What  did  Chief 
Justice  Marshall  say  in  the  case  of  a  ship  which  went  out  of  her  way 
to  save  a  man's  life  and  forfeited  her  insurance?  That  the  law  of  hu- 
manity was  above  the  law  merchant  or  commercial  law,  and  it  should 
not  work  a  forfeiture.  To  this  law  the  rules  of  courts  ought  to 
yield. 

States  a  fact  in  relation  to  one  of  the  cases  cited  by  Mr.  Bayard 
from  Washington's  Reports.  He  was  of  counsel  in  that  case  and 
well  recollected  that  the  Dutch  brokers,  after  the  interrogatories 
were  read  to  them,  had  leave  to  go  to  their  books  for  the  prices  of 
teas,  and  to  make  calculations  on  these  statements. 

Frame,  in  reply.  Are  we  too  late?  I  defy  the  counsel  on  the 
other  side  to  show  a  case  in  this  State  where  exceptions  have  ever 
been  filed  in  a  court  of  law  to  depositions,  or  articles  of  impeach- 
ment exhibited.  The  practice  of  chancery  in  this  respect  does  not 
and  cannot  apply  to  the  courts  of  law.  Were  they  surprised?  No. 
A  commission  V(a8  issued  in  July,  1831,  to  investigate  the  manner 
of  taking  these  depositions;  our  interrogatories  then  gave  them  no- 
tice of  the  matters  we  considered  exceptionable;  and  they  filed  cross 
interrogatories. 

Jones,  on  the  same  side. 

Is  our  commission  irregular?  If  H.  D.  Gilpin  was  our  secretary 
and  his  appointment  as  a  commissioner  wrong,  their  own  argument 
proves  that  it  is  too  late  to  make  the  objection.  Where  are  their  ex- 
ceptions? But  I  distinguish  between  personal  and  other  objections  to 
commissioners.  After  joining  in  a  commission  without  objection  it 
is  too  late  to  object  to  the  commissioner  on  personal  grounds.  I 
deny,  however,  that  the  fact  of  the  conmiissioner  being  our  secretary 
is  a  good  objection. 

Second,  There  is  no  authority  given  to  the  commissioners  in  this 
commission  to  appoint  a  clerk.  The  appointment  was  void  and  his 
acts  void.  Delegatus  non  potest  delegare.  The  taking  of  deposi- 
tions in  England  is  imder  very  restricted  rules.  There  is  a  publica- 
tion day  after  all  the  testimony  is  closed.  Eight  days  are  allowed 
for  excepting;  the  exceptions  are  referred  to  a  master  and  heard. 
These  are  all  preliminary  to  the  trial;  and  can't  apply  to  courts  of 
law.  They  do  not  even  apply  to  those  courts  of  chancery  with  which 
I  am  acquainted.  At  law  a  deposition  is  a  substitute  for  a  witness  at 
the  bar;  and  entitled  to  no  greater  favour.  All  exceptions  that  can 
be  taken  to  the  one,  may  to  the  other.  W.  S.  Randel  was  examined 
in  October,  1829;  he  died  in  October,  1830.  It  was  not  until 
April,  1831,  that  his  deposition  was  opened.  How  could  we  take 
exceptions  to  it  before?  Our  commission  which  issued  shortly  after 
May  term,  1831,  was  notice  to  the  other  side  of  our  intention  to 
attack  this  deposition.    A  witness  is  not  allowed  to  speak  from  writ- 


I 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  289 

ten  statements  made  by  himself  or  another;  can  the  court  extend  to 
this  defective  substitute  for  an  oral  examination  a  privilege  not  allow- 
ed to  a  witness  at  the  bar?  Will  it  dispense  with  a  rule  in  the  one 
ease  that  would  be  enforced  in  the  other?  And  the  worst  of  all  mem- 
oranda is  a  former  deposition  given  by  the  same  witness,  as  was  the 
case  here,  for  this  deposition  is  little  other  than  that  given  by  the 
same  witness  in  the  case  of  Randel  vs.  Wright. 

By  the  Court.  The  leaning  of  courts  for  years  past  has  been  in 
favor  of  the  admissibility  of  evidence  leaving  its  credibility  and 
weight  to  the  jury,  unless  there  exists  some  flat  and  insuperable  ob- 
jection to  its  competency.  If  there  be  matters  either  extrinsic  or 
intrinsic  to  throw  suspicion  over  it  or  detract  from  its  weight,  it  is 
better  that  the  jury  should  consider  the  testimony  with  the  objections 
than  entirely  to  exclude  the  former. 

Our  courts  have  no  settled  rules  on  the  subject  of  executing  com- 
missions to  take  depositions;  we  have  usually  referred  to  the  rules  of 
chancery  as  a  guide,  so  far  as  those  rules  could  apply  in  common  to 
both  courts,  and  so  far  as  they  were  applicable  to  the  case  in  hand. 
But  neither  in  this  court  nor  in  chancery  are  these  rules  of  practice 
of  such  an  unbending  nature  as  not  to  yield  to  circumstances.  The 
practice  of  taking  depositions  itself  is  a  departure  from  the  rules  of 
the  common  law :  it  was  introduced  by  necessity,  and  only  adopted  in 
cases  where  you  cannot  procure  or  compel  the  oral  evidence  of  wit- 
nesses, either  by  reason  of  age,  sickness,  or  being  out  of  the  jurisdic- 
tion of  the  courts.  In  such  cases,  ex  necessitate,  the  next  best  kind 
of  evidence  has  to  be  taken,  or  the  whole  lost.  And  if  the  whole 
system  of  evidence  can  be  changed  by  necessity,  and  written  evi- 
dence substituted  for  oral  testimony,  why  may  not  the  same  necessity 
authorize  the  taking  a  deposition  written  out  by  the  witness  himself, 
when  it  is  impossible  for  him  to  speak  it,  that  the  commissioners  or 
their  clerk  may  write  it  down?  Take  the  case  of  a  man  deaf  and 
dimib;  such  a  man  as  Mr.  Howell,  of  Kent,  a  gentleman  of  intelli- 
gence and  great  shrewdness,  who  is  employed  in  the  active  concerns 
of  life,  and  can  read  and  write,  but  has  never  spoken;  entirely  deaf 
and  dumb:  suppose  his  testimony  to  be  important  in  a  cause,  can 
there  be  any  rule  of  evidence  that  would  prevent  a  resort  to  the  only 
means  by  which  it  can  be  procured?  We  think  the  good  sense  of  the 
matter  will  dictate  such  an  application  of  rules  of  evidence  as  shall 
effect  and  not  defeat  their  object.  Let  testimony  be  guarded  by 
proper  rules;  but  when  those  rules  would  destroy  that  which  they 
were  designed  to  preserve  and  protect,  bend  or  modify  them  so  as  to 
get  the  testimony.  And  if  it  comes  subject  to  the  objection  of  not 
having  been  taken  with  the  usual  checks,  let  it  be  considered  with 
the  objection,  and  let  it  detract  from  the  weight  or  importance  of 
the  testimony. 

The  general  rule  is  that  a  witness  shall  not  be  permitted  to  bring 
his  deposition  ready  prepared :  like  all  general  rules,  it  must  have  its 
exceptions.  The  subsequent  death  of  a  witness  has  even  been  con- 
sidered a  good  reason  for  reading  depositions  thus  irregularly  taken. 
If  ever  there  was  a  case  in  which  a  prepared  deposition  would  be 
allowed,  this  is  such  a  case.    The  witness  was  languishing  in  a  dread- 

37 


290  Handel,  Jun.  vs.  Ches  4  Del.  Canal  Company. 

ful  disease,  which  would  certainly  prove  fatal,  and  whose  violence 
would  be  greatly  excited  by  conversation;  indeed  the  depositions 
prove  a  case  of  absolute  inability  to  speak  to  the  extent  required  by 
the  length  of  the  answers;  the  attempt  was  made,  and  was  only  aban- 
doned when  it  because  apparent  that  the  witness  would  sink  under  it, 
and  then  at  the  urgent  request  of  the  defts.'  commissioner.  The 
deposition  consists,  moreover,  of  many  and  long  mathematical  calcu- 
lations, which  could  not  possibly  be  made  orally,  or  thus  communi- 
cated from  the  witness  to  the  commissioners. 

We  think,  also,  that  the  other  objections  urged  against  this  deposi- 
tion are  not  sufficient  to  authorize  its  suppression,  and  we  direct  gen- 
erally that  it  be  read,  reserving  the  right  to  exclude  hereafter  such 
portions  of  it  as  may  appear  improper. 

That  part  of  the  deposition  which  related  to  the  lock  contract  was 
objected  to  and  struck  out.  So  of  all  those  parts  relating  to, damage 
arising  from  deviations  from  the  original  line  of  the  canal,  and  alter- 
ations in  the  form,  slope  and  dimensions  of  the  banks,  towing  paths, 
&c.  The  court  doubted  whether  this  was  a  covenant  on  the  part  of 
the  company  that  the  engineer  should  certify  the  damage  arising 
from  deviations.  Unconnected  with  the  other  parts  of  the  contract 
they  would  say  it  was  not.  The  language  is  very  different  from  that 
used  in  the  inspection  and  prevention  clauses.  But  there  being  no 
breach  assigned  on  this  deviation  clause,  the  testimony  relating  to  it 
was  rejected  without  giving  a  positive  construction  to  this  part  of 
the  contract. 

The  defts.  objected  to  certain  orders,  verbal  and  written,  given  by 
Wright,  the  engineer,  to  Kandel,  in  relation  to  the  work,  and  proved 
by  this  deposition.  The  court  said  that  any  orders  given  by  the 
agent  of  the  company  to  Randel  in  relation  to  the  work  were  evi- 
dence, and  also  any  declarations  made  by  him  at  the  time  of  giving 
such  orders  in  relation  thereto,  or  to  the  work;  but  that  any  other 
declarations  of  this  agent,  or  his  letters  to  the  company,  were  not 
evidence,  not  being  a  part  of  the  res  gesta,  or  connected  immediately 
with  the  discharge  of  his  duty  as  engineer.  On  this  principle  the 
deposition  was  purged  of  improper  matter  and  a  part  admitted. 

A  great  many  of  the  answers  were  entirely  rejected  as  containing 
improper  testimony,  either  wholly  or  to  such  an  extent  that  it  could 
not  be  disconnected  from  that  part  which  might  have  been  admissi- 
ble; some  of  the  answers  were  corrected  and  partially  admitted,  and 
others  entirely  admitted.  In  this  way  the  deposition,  consisting  of 
twelve  hundred  pages  was  argued,  examined,  and  marked  for  admis- 
sion or  rejection. 

In  admitting  the  answer  to  the  68th  interrogatory,  the  court  took 
a  distinction  between  deviations  and  orders  of  the  engineer  to  the 
contractor  to  make  the  banks  of  particular  materials,  or  in  a  particu- 
lar manner;  such  as  scalping  or  mucking  under  the  bank,  ordering 
upland  earth  from  a  distance,  &c.  Randel  covenanted  to  conform  to 
Buch  deviations  from  the  line  of  the  canal,  and  alterations  in  the 
form,  slojie,  &c.  of  the  banks,  &c.  The  canal  company  covenanted 
not  to  prevent  him  from  using  the  due  and  best  mode  of  executing 
the  work.  He  was  therefore  to  be  allowed  to  use  the  best  mode  of 
executing  as  well  that  part  of  the  work  on  which  deviations  should 


Kandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  291 

be  made  as  the  other  parts  which  remained  as  originally  located.  In 
either  case,  if  he  was  prevented  by  the  default  of  the  company,  they 
were  liable  under  the  prevention  covenant.  The  contract  specifies 
that  the  banks  shall  be  made  of  the  adjoining  excavation,  and  we 
have  not  been  able  to  discover  any  clause  which  authorized  the  engi- 
neer to  order  the  earth  for  this  purpose  to  be  brought  from  the  dis- 
tant upland. 

The  answer  to  the  113th  interrogatory  was  objected  to,  because  it 
did  not  appear  that  the  directions  mentioned  in  that  answer  by  Henry 
Wright  to  Eandel,  to  pay  Woodbridge  certain  sums  of  money  for 
building  a  sluice,  were  within  the  scope  of  Wright's  authority  as  first 
assistant  engineer.  The  court  admitted  the  evidence.  We  do  not 
know  certainly  the  extent  of  this  engineer's  authority.  It  is  general 
in  its  nature,  and  may  be  inferred  from  facts,  and  the  connexion  of 
his  acts  with  the  business  in  which  he  was  employed.  It  is  proved 
here  that  Wright  undertook  the  making  of  a  sluice  at  the  mouth  of 
Extine's  drain,  and  that  he  employed  Woodbridge  to  work  on  it. 
It  is  further  proved  that  the  committee  of  works  were  present  and 
inspected  the  work  without  objection.  These  are  facts  from  which 
the  jury  may  decide  whether  Wright's  orders  on  Randel  to  pay 
Woodbridge  for  the  w^ork  w^ere  within  the  scope  of  his  authority. 

Adam  Diehl,  sworn. 

The  St.  George's  marshes  were  embanked  in  1797 — 8.  Section 
No.  3  of  the  canal  line  passes  through  Higgins'  and  Newbold's  marsh. 
It  was  all  mowable  land,  not  obstructed  by  water;  dry,  except  in 
time  of  freshets.  It  was  all  enclosed  within  the  general  embank- 
ment. The  back  water  was  discharged  by  means  of  four  sluices, 
which  were  all  but  one  near  the  mouth  of  St.  George's  creek.  The 
sluices  were  sufficient  to  discharge  the  water,  except  in  time  of  fresh- 
ets. After  the  canal  was  commenced  this  marsh  was  inundated. 
To  get  rid  of  the  water  they  cut  Extine's  drain  and  put  in  it  a  sluice, 
which,  instead  of  answering  the  purpose  designed,  let  the  water  in 
from  the  river.  It  was  put  in  the  wrong  place,  and  blowed  out.  The 
whole  of  the  cranberry  marshes  were  inundated  in  the  fall  of  1824, 
by  water  let  in  through  Extine's  drain.  The  canal  could  not  have 
been  cut  through  section  3  in  the  fall  of  1824.  It  would  have  cost 
more  to  pump  out  the  water  than  to  cut  the  canal. 

Daniel  Newhold,  sworn. 

The  marshes  on  section  jN'o.  3  were  usually  dry.  The  guard  bank 
being  thrown  on  the  south  side  of  the  canal,  cut  off  the  usual  vent 
through  the  sluices  at  the  mouth  of  St.  George's  creek.  Extine's 
drain  was  cut  as  "a  substitute  but  failed;  it  let  in  more  water  than  it 
let  out.  An  aqueduct  under  the  canal  was  attempted,  but  this  also 
failed.  Eandel  could  not  have  excavated  No.  3  in  the  fall  of  '24  at 
four  times  the  cost  under  other  circumstances,  in  consequence  of  its 
being  i mandated  for  want  of  a  drain.  The  company  did  not  get  pos- 
session of  the  ground  for  sections  one  and  two  until  late  in  1825. 

Deposition  of  Jeremiah  Brainard  read,  in  part. 

The  plff.  offered  in  evidence  certain  depositions  taken  under  a 
commission  to  Thomas  Janvier  and  others.  Objected  to  for  want  of 
notice  of  the  taking  out  the  commission.  The  plff.  called  Benjamin 
Janvier  and  proved  that  a  copy  of  the  interrogatories  had  been  left  at 


292  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

the  office  of  ifr.  Bayard,  but  not  handed  to  him  personally.     The 
court  held  this  sufficient. 

In  consequence  of  the  death  of  Mrs.  Robinson,  the  mother  of  one 
of  the  jurors,  and  of  the  approach  of  Christmas,  the  court  adjourned. 
over  for  one  week. 

Thursday,  December  26,  1833. 

The  plfE.  gave  in  evidence  an  account  rendered  by  the  canal  com- 
pany to  Randel  for  work  done,  dated  10th  January,  182G;  also  cer- 
tain contracts  entered  into  between  Randel  and  his  sub-contractors^ 
Timothy  Grindley;  Reybold  and  Clarke;  Joseph  Cragg;  David  John- 
son; Jared  Leavenworth;  Clarks,  &c.;  Woodward;  M'Martin  and 
others;  Tripp;  Blackstock  &  Co.;  Eaves  &  Co.;  Caulk  &  Co.; 
Clark  &  Co.;  Daily  &  Co.;  Sexton  &  Co.;  Brooman;  Sutton;  Fisher 
&  Co.;  &c.,  &c. 

Paul  Beck,  Jr.,  whose  deposition  was  rejected  at  an  earlier  stage 
of  the  cause,  now  appeared  and  was  sworn. 

Proves  the  seal  of  the  company  and  the  execution  of  the  contract. 
Was  formerly  a  director  of  the  company;  resigned.  Question.  Why 
did  you  resign?  I  resigned  because  from  the  acts  of  the  board  toward 
Randel,  it  was  manifest  to  me  his  ruin  was  inevitable;  and  I  did  not 
choose  to  be  accessary  to  it.  Question.  What  acts  do  you  allude  to? 
I  specify  the  allowance  on  one  occasion  of  $600  for  work  amounting 
to  $3000:  I  speak,  however,  of  the  tendency  of  their  whole  conduct. 
I  believed  that  the  board  was  governed  by  Wright,  and  that  he  had 
determined  to  ruin  Randel. 

Hugh  Lee,  sworn.  Livermore,  Dexter  and  myself  measured  the 
work  on  which  Wright's  final  certificate  was  given;  Wright  meas- 
ured no  part  of  it.  Our  mode  of  measurement  was  not  calculated 
to  produce  a  correct  result.  I  did  not  know  how  to  do  it  scientifi- 
cally, nor  do  I  believe  the  others  did.  Our  orders  were  to  keep  the 
company  on  the  safe  side.  (Cross  examined.)  I  carried  the  rod; 
not  the  level. 

The  plff.  having  offered  evidence  to  prove  that  Benjamin  Wright, 
the  engineer  in  chief,  had  caused  false  measurements  to  be  made 
of  the  work  done  by  plaintiff  and  had  given  false  certificates  of  the 
amount  of  labour  and  materials,  the  objection  was  made  to  the  admis- 
sion of  such  evidence,  that  by  the  express  terms  of  the  agreement 
declared  on,  the  measurements  and  estimates  and  certificates  of  the 
engineer  were  final  and  conclusive,  and  that  the  plff.  was  now 
estopped  to  aver  the  fact  that  they  were  false. 

Clayton  for  the  plff.  argued  that  the  second  count  of  the  declara- 
tion contained  breaches  assigned  on  the  covenant  "  carefully  to  ex- 
amine and  inspect  the  work,"  which  breaches  of  course  averred  that 
the  work  was  "  not  carefully  examined  and  inspected ; "  that  the 
defts.  had  not  traversed  these  breaches,  but  had  pleaded  only  the 
general  issue  of  non  est  factum  and  the  plea  of  abandonment  which 
was  a  special  plea  in  bar,  confessing  and  avoiding  the  matters  alledged 
in  these  and  all  the  other  breaches  in  this  count;  and  that  the  plff., 
of  course,  could  not  be  estopped  to  show  the  very  fact  which  the 
defts.  by  their  own  pleadings  had  admitted. 

Bayard  for  deits.  said  there  was  a  plea  traversing  the  breach  that 
the  work  was  not  carefully  examined  and  inspected. 


p 


Kandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  293 

Clayton  replied  that  the  plea  referred  to  was  a  plea  to  the  fourth 
and  sixth  counts  only,  and  that  the  defts.  had,  in  pleading,  entirely 
overlooked  the  second  count  in  this  particular. 

There  being  no  plea  traversing  these  breaches  in  the  second  count 
of  the  declaration,  the  evidence  was  admitted. 

The  plff.  further  gave  in  evidence  parts  of  the  deposition  of  Elisha 
Putnam  and  Jeremiah  Brainard;  the  other  part  having  been  ruled 
out. 

Also,  the  record  of  sundry  proceedings  in  the  nature  of  writs  of 
ad  quod  damnum  on  the  part  of  the  company  against  sundry  persons, 
the  owners  of  land  through  which  the  canal  passed,  for  the  condem- 
nation of  those  lands. 

And  he  here  closed  his  case. 

Mr,  Bayard  opened  for  the  defendants  by  a  general  statement  of 
ihe  character  and  tendency  of  the  testimony  which  would  be  offered. 

He  then  gave  in  evidence  Kandel's  estimate  of  the  costs  of  the  canal 
and  a  statement  of  the  actual  cost,  the  former  being  $788,464  28, 
and  the  latter  $1,100,303  35:  also  the  report  of  the  engineers  Tot- 
ten,  Bernard,  White,  Wright,  Randel  and  Strickland,  recommend- 
ing this  route.     The  canal  was  commenced  on  the  15th  April,  1824. 

He  produced  sundry  receipts  for  payments  to  Band  el  on  account 
of  work  done,  and  compared  them  with  the  certificates,  showing  a 
balance  due  on  the  certificates,  as  admitted,  of  $794  05. 

Benjamin  Wright's  certificate  that  Eandel  unreasonably  neglected 
the  work,  dated  30th  July,  1825.  Minutes  of  the  board  of  directors 
at  a  meeting  held  first  August.  Adjourned  to  the  afternoon. 
Wright's  communication  was  referred  to  a  special  commitlee  to  con- 
sult counsel.  On  the  5th  of  August  this  committee  made  a  report. 
On  the  12th  of  September  Eandel,  by  letter,  acknowledges  that  he 
received  notice  of  the  certificate  of  Wright  on  the  10th  of  September. 
And  asks  a  copy  of  the  specifications  and  reasons.  On  the  13th  of 
September  the  board  refused  this  request  by  a  resolution  communi- 
cated to  Kandel.  The  defts.  here  offered  in  evidence  a  report  of  a 
comm^ittee  of  the  board,  on  which  this  resolution  was  founded,  set- 
ting forth  the  facts  and  reasoning  on  which  the  board  went.  The 
court  rejected  the  report,  unless  the  facts  stated  in  it  were  proved 
aliunde.  The  statement  of  the  committee  is  no  evidence  of  those 
facts,  and  the  reasoning  of  the  committee  on  such  assumed  facts  is 
inadmissible.  This  opinion  was  excepted  to.  On  the  19th  of  Sep- 
tember the  board  again  met.  Eandel  appeared  and  asked  for  time  to 
prepare  his  defence.  On  the  30th  of  September  the  resolution  de- 
claring the  contract  abandoned  was  adopted,  and  notice  was  given  to 
Randel  on  the  first  of  October.  The  defts.  offered  this  resolution  in 
evidence,  together  with  a  preamble  setting  forth  the  facts  and  reasons 
on  which  it  was  founded.  The  court  admitted  the  resolution  and 
rejected  the  preamble,  unless  the  facts  were  proved  aliunde.  Ex- 
ception taken. 

Defts.'  counsel  read  an  agreement  between  the  canal  company  and 
Henry  Wright  as  first  assistant  engineer,  and  Daniel  Livermore  as 
second  assistant  engineer;  the  former  at  $4  50,  and  the  latter  at 
$3  50  per  day. 


294  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

Judgment  on  bond  of  Randel  and  Sutton  to  the  defts.  for  $15,000. 
Sundry  credits  endorsed. 

Proved  proceedings  in  relation  to  Daniel  Newbold's  land,  sections 
No.  1  and  2.  The  habere  facias  on  which  the  company  obtained 
possession  was  issued  2l8t  April,  1825. 

Caleb  Newhold,  jr.  sworn. 

Was  a  director  of  the  company  from  1823.  Was  a  member  of  the 
committee  of  works.  Verbal  orders  were  frequently  given  to  Mr. 
Randel,  in  the  summer  of  1824,  to  proceed  with  the  work,  which  he 
did  not  comply  with.  He  promised,  but  did  not  comply  to  the  ex- 
tent promised.  Has  no  recollection  of  Randel's  proposing  to  put 
brush  under  the  bank:  the  bank  made  of  the  light  horse  dung  mud 
was  good  for  nothing;. burnt  up.  Randel  made  a  bank  to  Wilson's 
point,  designed  as  a  temporary  embankment,  for  which  he  received  a 
specific  sum;  it  broke  when  the  water  was  raised  in  it.  No.  1  was 
not  excavated  to  bottom  when  R.  left  it.  The  bottoms  of  sections  1, 
2  and  3  had  to  go  about  four  feet  below  low  water.  Don't  see  what 
advantage  section  2  could  have  been  to  Randel  as  a  drain  for  section 
3.  He  must  have  had  a  sluice  in  at  the  lock.  The  water  was  finally 
pumped  out  of  section  3  and  discharged  by  St.  George's  creek. 
Thinks  the  excavation  on  section  5  could  not  have  been  done  at  25 
cents  per  yard.  The  revised  prices  were  fairer  than  the  original 
scale  to  both  parties. 

(Cross-examined.)  Is  not  an  engineer.  Can't  say  as  to  what 
precise  extent  Randel  failed  to  obey  the  orders  of  the  committee  of 
works.  He  promised  to  put  on  and  keep  on  120  men;  did  not  keep 
that  number  on.  The  resolutions  of  November,  1824,  ordering  him 
to  go  to  bottom,  &c.  were  in  consequence  of  these  failures. 

The  defts.'  counsel  now  offered  in  evidence  a  contract  of  Messrs. 
Reybold  &  Clark  with  the  canal  company  for  the  excavation  of  sec- 
tions 2  and  3,  a  part  of  Randel's  contract,  to  show  that  the  work 
finally  cost  more  than  Randel's  estimate,  and  more  than  he  had  con- 
tracted to  do  it  for.     Objected  to. 

J.  M.  Clayton.  The  evidence  is  inadmissible,  whether  it  be  true 
or  not  that  the  canal  cost  more  than  Randel's  estimate.  He  was  not 
to  be  paid  by  that  estimate  in  the  aggregate,  but  by  the  cubic  yard. 
If  the  amount  of  excavation  exceeded  the  estimate,  the  price  neces- 
sarily exceeded  it.  The  report  of  the  board  shows  that  the  banks 
sunk  on  section  3  to  the  depth  of  100  feet,  filling  up  and  raising  the 
chamber  of  the  canal  by  the  lateral  pressure  of  the  sinking  tow  path, 
so  that  this  part  of  the  canal  was  in  fact  excavated  several  times.  For 
this  additional  labour  Randel  must  have  been  paid  as  well  as  Reybold 
&  Clarke,  and  the  final  cost  of  the  canal  by  no  means  proves  or  dis- 
proves the  issue  here,  the  amount  of  Randel's  damages.  Again  the 
increased  cost  of  the  work  arose  from  deviation;  it  was  in  fact  an- 
other route,  a  different  canal  from  that  on  which  the  estimate  of 
Randel  was  founded.  Reybold  &  Clark  stipulated  also  to  do  the  work 
from  one  to  two  years  earlier  than  Randel  was  bound  to  perform  it 
in.  If  the  time  be  materially  shortened,  we  know  that  the  price  must 
be  materially  increased. 

J.  A.  Bayard.     I  agree  that  Randel  was  to  be  paid  by  the  cubic 


Kandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  295 

yard,  and  that  the  cost  of  the  work  would  be  increased  by  increasing 
the  amount  of  excavation;  but  our  object  now  is  to  prove  that  he 
could  not  have  done  it  at  the  contract  rate  per  yard,  whether  the 
quantity  be  more  or  less.  If  the  cost  of  the  work  was  increased  by 
a  different  mode  of  execution,  it  is  a  matter  proper  to  be  considered. 
The  evidence  tends  to  show  that  the  cost  per  cubic  yard  of  the  work 
done  by  Eeybold  &  Clark  was  more  than  Kandel's  estimate  and  con- 
tract, and  that  he  did  not  sustain  any  damage  by  the  abandonment  of 
his  contract. 

Clayton.  The  defts.  may  show  that  practical  men  could  not  do 
the  work  at  the  rate  Eandel  contracted  to  do  it  for;  but  they  cannot 
show  it  by  a  contract  with  others  for  a  canal  differently  located,  more 
expensively  constructed,  and  to  be  completed  in  half  the  time.  You 
might  as  well  inquire  the  cost  of  the  great  wall  of  China  to  prove 
that  Eandel  could  not  have  dug  this  canal  at  his  contract  rates. 

The  Court. — The  contract  of  Eeybold  and  Clark  is  offered  in  evi- 
dence with  a  view  to  show  that  l^andel  could  not  have  made  money 
if  he  had  been  permitted  to  go  on  to  the  completion  of  his  contract. 
The  contract  offered  is  confessedly  in  some  respects  in  relation  to  a 
deviated  or  different  work,  and  its  stipulations  are  essentially  differ- 
ent from  the  plaintiff's  contract;  how  then  can  one  prove,  with  any 
certainty,  any  thing  in  relation  to  the  other?  If  the  contract  offered 
was  for  the  same  work  it  would  not  itself,  in  an  action  between  other 
parties,  be  proper  evidence  to  prove  that  such  sum  was  or  was  not 
compensation  for  the  work,  nor  how  much  could  be  lost  or  gained 
by  it,  but  the  parties  themselves  to  such  contract  should  be  brought 
to  testify  as  to  the  actual  cost.  Evidence  rejected;  and  excepted  to. 
On  the  same  ground  the  court  rejected  contracts  with  Dexter,  Hur- 
lock,  Flannagan  &  Carr,  and  others. 

Johji  K.  Kane,  sworn  on  the  voire  dire.  Is  a  director  of  the 
canal  company,  but  not  a  stockholder.  Was  a  small  stockholder 
until  within  a  short  time.  Sold  out  his  stock  with  a  view  to  giving 
testimony  '^.  this  cause.     Objected  to. 

Clayton.     He  is  a  party  on  the  record. 

Bayard.  He  is  not  interested  in  the  event  of  the  suit;  not  even 
liable  for  costs,  as  he  is  not  a  member  of  the  corporation.  In  truth 
he  is  not  a  party  of  record.  The  title  of  the  suit  and  of  the  company 
is  "  The  Ch-esapeaTc e  and  Delaware  Canal  Company ; "  i.  e.  the  mem- 
bers of  the  company,  the  corporators,  and  not  the  officers  of  the  cor- 
poration. A  secretary  of  a  company,  who  is  not  a  stockholder,  may 
be  examined  on  the  ground  of  no  interest;  so  may  a  director,  if  he 
stand  in  the  same  disinterested  condition. 

The  court  admitted  him.  The  general  rule  which  incapacitates  a 
witness  regards  his  interest  in  the  event  of  the  suit,  or  his  liability 
for  costs,  rather  than  ]iis  character  or  connexion  with  the  parties. 
Thus  a  trustee,  if  a  party  on  the  record  though  not  interested  in  the 
suit,  is  no  Avitness  because  he  is  liable  for  costs.  So  of  a  next  friend, 
&c.  Here  the  witness  has  no  interest;  he  is  not  even  a  party  to  the 
record,  and  if  he  were,  he  would  not  in  this  case  be  liable,  for  he  is 
not  a  member  of  the  corporation.  It  is  a  new  question,  started  per- 
haps for  the  first  time  in  this  State,  and  it  can  seldom  occur  any 


296  Randel,  J  UN.  vs.  Ches,  &  Del.  Canal  Company. 

where,  for  the  directors  in  these  companies  are  almost  always  stock- 
holders also.  As  at  present  advised  we  do  not  see  that  any  rule  of 
evidence  prevents  this  director  from  giving  testimony.  Angel  & 
Ames  on  corporations,  393. 

John  K.  Kane,  sworn.  Gives  a  history  of  the  revision  of  prices, 
and  of  the  certificate  of  negligence  and  resolution  of  abandonment. 
Was  at  the  canal  in  the  summer  of  1825.  It  had  been  a  subject  of 
frequent  complaint  to  Eandel  that  he  did  the  work  irregularly  and 
on  parts  most  convenient  and  profitable.  This  was  the  cause  of  the 
order  to  go  to  bottom. 

After  the  company  received  Wright's  certificate  of  the  30th  July 
it  was  referred  to  a  committee  with  directions  to  consult  counsel. 
They  did  so,  and  reported  on  the  fifth  of  September.  The  board 
then  directed  Randel  to  be  notified  of  the  certificate.  About  the 
twelfth  they  received  a  letter  from  Randel  asking  a  specification  of 
charges.  This  letter  was  referred  to  a  committee  with  directions  to 
consult  counsel.  In  pursuance  of  advice  received  from  counsel  the 
board  notified  Mr.  Randel  that  they  would  proceed  on  the  19th  Sep- 
tember to  determine  what  they  would  do  in  relation  to  the  certifi- 
cate, and  that  they  would  then  inform  him  of  the  points  to  which  he 
might  direct  his  answer.  On  the  nineteenth  Randel  attended.  The 
chairman  stated  to  him  the  objections  of  the  board  to  his  conduct  as  a 
contractor.  He  took  notes;  asked  for  time  to  prepare  his  reply; 
named  tliirty  days, —  four  weeks;  the  board  fixed  ten  days.  Randel 
again  met  them  on  the  twenty-ninth  and  presented  his  defence  in 
writing.  They  adjourned  to  the  next  day;  and  then  adopted  the 
resolution  of  abandonment. 

(Cross  examined.)  Mr.  Smith  came  before  the  board  on  the 
nineteenth,  and  desired  to  read  Randel's  defence.  He  represented 
Bandel  as  being  much  indisposed  and  unable  to  attend;  But  we  did 
not  think  his  appearance  indicated  such  a  state  of  ill-health.  He  was 
languid.    Mr.  Gilpin  read  a  part  of  his  defence  for  him. 

Nathan  Boulden,  sworn.  Elnew  Wm.  S.  Randel.  His  habits  were 
irregular.  Saw  him  once  lying  in  the  office  asleep  or  drunk  with  a 
quantity  of  bank  notes  in  the  crown  of  his  hat.  John  Randel  was 
sometimes  dilatory  in  his  payments;  his  credit  not  always  good. 

Mr.  Bayard  read  in  evidence  the  original  estimates  of  the  cost  of 
the  canal;  and  also  the  award  of  Benjamin  Wright  on  the  revised 
schedule  of  prices. 

Daniel  Livermore,  sworn.  Is  an  engineer;  commenced  in  1819; 
came  to  this  canal  in  1824.  I  measured  a  part ;  about  one-half  of 
section  four,  and  all  of  section  five  that  was  embraced  in  Mr.  Randel's 
contract.  The  semi-monthly  statements  of  work  done  were  made 
by  counting  the  number  of  men  and  teams  while  at  work.  The  check 
rolls  would  probably  show  a  larger  number;  and  the  count  might  be 
a  little  below  the  number  actually  employed,  for  if  any  were  acci- 
dentally absent  they  would  be  omitted.  The  counts,  though  perhaps 
a  few  short,  were  sufficiently  accurate  for  general  purposes.  De- 
scribes at  length  his  mode  of  measuring.  Thinks  it  as  accurate  as 
any  that  could  have  been  used.  Had  to  be  governed  frequently  by 
the  eye,  as  it  was  impracticable  to  measure. 


I 


Randel,  Jvn.  vs.  Ches.  &  Del.  Canal  Company.  397 

(Cross  examined.)  Boating  would  have  been  cheapest  on  sec- 
tion four,  but  it  was  not  practicable  to  any  extent.  The  slips  would 
have  prevented. 

Philip  Reyhold,  sworn.  We  offered  Carr  eighteen  cents  per  yard 
for  doing  section  three,  and  calculate  water  as  mud.  We  continued 
the  work  during  winter.  Costs  something  more,  but  men  could  be 
got.  All  the  water  on  this  section  was  thrown  over  the  bank  and  not 
drained  through  sections  one  and  two.  Section  two  could  not  have 
"been  excavated  at  fifteen  cents;  our  contract  was  twenty  cents,  and  I 
think  we  lost  money  at  it.  The  springs  were  abundant  and  it  had  to 
be  bottomed  under  water.  Sections  one  and  three  could  not  have 
been  done  at  twelve  and  a  half  cents.  Section  two  was  of  no  use  as 
a  drain  for  section  three.  I  did  not  think  that  Randel's  workmen 
managed  well;  they  were  too  much  in  mud  and  water. 

(Cross  examined.)  Reybold  and  Clark  have  still  a  small  claim 
against  the  company  for  an  aqueduct,  some  four  or  five  thousand  dol- 
lars. The  material  of  the  tow-path  was  brought  three  or  four  hun- 
dred yards,  and  not  of  the  adjoining  excavation.  We  were  never 
paid  for  our  work  by  the  yard;  it  was  impossible  to  estimate  it  thus. 
Henry  Wright  was  not  a  dormant  partner  with  us. 

Joseph  Carr,  sworn.  Section  five  could  not  have  been  done  for 
twenty-five  cents  per  yard. 

(Cross  examined.)  We  cleared  about  27,000  dollars  on  our  con- 
tract. 

William  J.  Hurlock,  sworn.  Worked  on  section  foa/.  It  could 
not  have  been  done  at  fourteen  cents.  Got  twenty  cents  from  two 
points,  and  sixteen  cents  from  another  point.  Can't  say  whether  I 
made  12,000  dollars  by  my  contract;  don't  think  I  made  fifteen 
thousand. 

Henry  Cazier,  sworn.  The  first  season  Eandel  let  out  the  work 
to  contractors;  he  afterwards  worked  it  himself.  His  contractors 
were  good.  On  some  parts  his  workmen  were  dilatory.  The  plan 
was  not  a  good  one. 

Mr.  Bayard  read  a  letter  from  Randel  to  the  canal  company,  stat- 
ing his  claim  at  54,000  dollars,  dated  January  2,  1826.  He  stated, 
however,  that  this  did  not  cover  his  whole  demand. 

The  defendants  closed  their  testimony. 

Plaintiff,  in  reply,  called 

Hugh  Lee,  sworn.  Has  calculated  the  original  surface  levels  of 
the  canal.  Describes  at  length  his  mode  of  measuring  and  calcu- 
lating. Livermore's  plan  is  not  correct.  Has  frequently  heard  Liv- 
ermore  speak  very  disrespectfully  of  Randel  whilst  engaged  in  the 
measurement. 

Clayton  for  plff.  offered  in  evidence  two  drafts  for  $1000  and 
$4000,  respectively,  drawn  by  John  Randel  in  favour  of  Sutton,  en- 
dorsed and  discounted  at  the  Philadelphia  Bank;  and  protested  on 
the  ninth  July.    Objected  to  as  irrelevant. 

J.  M.  Clayton.  The  evidence  is  in  reply  to  Boulden  and  others 
who  swore  that  Randel  was  dilatory  in  his  payments,  and  neglected 
his  work  for  want  of  means.     We  here  show  the  reason.     That  he 

38 


298  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

was  crippled  in  his  resources  by  the  negligence  of  the  company;  by 
their  not  paying  him  promptly.  The  certificates  already  in  evidence 
show  that  on  the  second  of  July  there  was  due  Randel  $5518,  which 
was  not  paid,  as  the  receipts  show,  until  the  eleventh.  In  the  mean 
time  these  drafts  were  protested  and  Randel's  credit  injured. 

Doctor  Sutton  was  called  to  prove  the  dishonour  of  these  drafts. 
He  admitted  on  the  voire  dire  that  he  held  certain  obligations  of 
Randel  payable  on  the  determination  of  this  suit.  The  court,  on  in- 
specting the  papers,  held  him  a  competent  witness,  saying  that  he 
was  not  interested  in  the  event  of  the  suit,  as  the  obligations  were 
payable  at  all  events,  whether  the  suit  resulted  one  way  or  the  other. 

The  admissibility  of  the  drafts  finally  turned  on  the  question 
whether  they  were  inland  or  foreign  bills.  If  foreign  the  protest  is 
proved  by  the  notarial  seal.  Mr,  IngersoU  said  it  is  now  settled  by 
the  supreme  court  that  bills  from  one  state  to  another  were  foreign 
bills.  After  the  matter  was  considerably  debated,  it  was  found  that 
these  drafts  were  dated  in  Philadelphia,  and  made  payable  there;  the 
court  therefore  rejected  them  without  actual  proof  of  the  protest.  It 
appeared  that  after  the  endorsement  these  drafts  had  been  in  the 
hands  of  S.  H.  Hodson,  ciashier  of  the  Bank  of  Smyrna;  but  the 
court  said  this  did  not  change  their  character  as  inland  bills. 

Dr.  Sutton,  sworn. 

Had  a  sub-contract  from  Randel  on  section  3  for  12  1-2  cents; 
about  three-fifths  of  that  section.  Could  make  money  at  it.  I  was 
prevented  by  Wright  from  doing  the  work  properly. 

Robert  Keddy,  sworn. 

Livermore  measured  my  work  of  eight  rods.  I  was  dissatisfied, 
and  complained  to  Wright.  We  agreed  that  it  should  be  re-meas- 
ured by  J.  Fairlamb.    He  made  it  4040  yards  more  than  Livermore. 

Dr.  Gemmel,  sworn. 

Question.  Did  you  at  any  time  hear  Benjamin  Wright  give  Henry 
Wright  orders  to  make  false  certificates  of  Randel's  work?  State 
precisely  what  the  orders  were.  Objected  to  and  argued  at  length. 
The  court  permitted  the  question  to  be  put.  Here  is  a  controversy 
between  Livermore  and  Lee,  two  engineers,  as  to  the  correctness  of 
the  measurement  of  Randel's  work.  He  proposes  to  prove  that  it  was 
intentionally  wrong;  wrong  by  the  direction  of  the  company,  given 
by  their  chief  engineer  to  his  subordinates.  The  testimony  is  not 
admissible  to  show  malice  in  the  engineer;  his  malice  or  fraud  is  no 
ground  of  damage  as  against  the  company;  but  it  is  admitted  to  show 
the  incorrectness  of  the  measurements,  the  falsehood  of  the  certifi- 
cates, and  the  consequent  damage  to  the  plff. 

Witness.  I  did  hear  Benjamin  Wright  give  directions  to  Henry 
Wright  to  make  short  and  false  estimates  and  certificates  of  Randel's 
work.    He  said  he  would  ruin  Randel's  credit  and  break  him  up. 

Question.  Did  Henry  Wright  or  Benjamin  Wright  at  the  same 
time  say  that  if  liandel  was  treated  as  other  contractors,  or  permitted 
to  go  on,  he  would  make  over  $200,000  by  his  contract?  Objected 
to  and  rejected  by  the  court  as  a  mere  opinion  of  Wright,  not  on  oath. 

Witness.  I  also  saw  a  letter  from  a  director  of  the  company  to  H. 
Wright,  approving  of  his  conduct  in  relation  to  Randel,  and  request- 


I 


Eandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  299 

ing  him  to  persevere  in  it.  Wright  showed  me  the  letter,  and  imme- 
diately burned  it.    He  said  it  was  from  Mr. ,  and  it  was  signed 

,  and  with  two  initials,  1  think  — .     Have  never  seen  him 

write,  and  don't  know  positively  that  it  was  his  hand  writing. 

Question.  State  precisely  the  contents  of  that  letter.  Objected  to, 
and  rejected  by  the  court.  Afterwards,  the  director  being  present, 
the  witness  was,  by  consent,  permitted  to  state  the  contents  of  the 
letter. 

Witness.  He  advised  Henry  Wright  to  continue  the  course  he  had 
been  pursuing  towards  Randel,  and  he  would  eventually  break  him 

up.     The  letter  was  short  and  sweet.     I  do  not  know  Mr.  's 

christian  name.  The  signature  was  individual,  and  not  as  secretary 
or  director.  I  heard  Philip  Reybold  and  Henry  Wright  talking 
about  taking  away  Randel's  contract  and  giving  it  to  Eeybold,  four 
or  five  weeks  before  it  was  abandoned. 

The  Director,  sworn.  I  never  wrote  the  letter  spoken  of  by  Dr. 
Ctemmel,  or  any  such  letter.  I  never  by  word  or  writing  authorized 
any  one  to  believe  that  I  wished  any  thing  done  towards  Mr.  Randel 
that  was  not  strictly  just  and  legal.  I  never  wrote  confidentially  to 
H.  Wright  during  Randel's  contract.  I  wrote  him  one  or  two  letters 
afterwards  of  friendly  caution  in  relation  to  his  own  habits  and  the 
estimates  for  Clement.  I  swear  positively  that  I  never  wrote  the 
letter;  because,  had  I  been  capable  of  such  an  outrage  of  every  prin- 
ciple of  honesty  and  fairness,  it  must  have  made  an  impression  on 
my  mind  that  time  could  not  erase.  I  neither  had  motive  nor  feeling 
towards  Mr.  Randel  which  could  have  prompted  such  an  act  of  in- 
justice. 

John  Kizier,  sworn.  Was  acquainted  with  the  cutting  on  No.  5, 
the  deep  cut.  The  sub-contractors  made  money  at  25  cents.  De- 
scribes the  manner  of  boating  the  earth  from  section  5  to  section  4. 
The  excavation,  boating  and  depositing  on  the  tow  path  cost  about 
15  cents. 

Plff.  gave  in  evidence  a  resolution  of  the  board  dated  23d  Septem- 
ber, 1825,  appointing  Messrs.  Gillaspie  and  Jones  to  go  to  the  canal 
and  ascertain  the  state  of  the  work.  He  then  offered  a  paper  in  the 
bandwriting  of  Dr.  Gillaspie,  and  signed  by  him,  purporting  to  be 
notes  of  their  examination,  or  a  rough  draft  of  a  report.  Gillaspie  is 
dead. 

Bayard.  This  is  a  private  memorandum  of  Dr.  Gillaspie,  not 
communicated  to  his  colleague,  nor  to  the  board. 

Clayton.  They  are  the  notes  of  the  committee;  a  journal  of  their 
joint  proceedings.  A  report  was  not  made  to  the  board,  because  they 
abandoned  the  contract  without  waiting  for  a  report.  They  ap- 
pointed a  committee  to  test  the  truth  of  Wright's  certificate  of  negli- 
gence, and  decided  without  hearing  the  evidence. 

Ingersoll.  Admitting  that  this  is  the  individual  act  of  Doctor  Gil- 
laspie, it  is  an  act  in  the  discbarge  of  his  duty  as  agent  of  the  com- 
pany, acting  imder  a  resolution  of  the  board.  The  notes  were  made 
in  the  capacity  of  committee-man,  a  part  of  the  res  jesta,  and  are  evi- 
dence.    1  Stark.  Ev.  52. 

Bayard.     The  duty  was  assigned  to  two.     The  separate  notes  of 


300  Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company, 

one  are  not  in  conformity  with  the  authority;  and  if  it  appeared  that 
they  both  concurred  in  them,  as  they  were  never  communicated  to 
the  company  they  cannot  affect  it.  The  fact  that  no  report  was  ever 
made  is  conclusive. 

The  testimony  was  rejected. 

John  Sutton,  sworn.  Counted  Randel's  force  on  the  13th  July, 
1825.  On  section  No.  3  there  was  an  average  force  of  267  men,  50 
horses;  on  No.  5,  301  men,  186  horses. 

Plff.  produced  a  model  of  the  monument  erected  by  the  company 
at  Summit  Bridge,  and  proved  the  inscriptions,  which  were  as  fol- 
lows : 

South  front" — This  tablet  is  erected  by  the  proprietors  of  the 
Chesapeake  and  Delaware  canal,  to  commemorate  its  completion,  on 
the  17th  of  October,  1829,  and  to  stand  as  a  testimonial  of  their  grati- 
tude to  James  C.  Fisher,  president,  and  Thomas  P.  Cope,  John  K. 
Kane,  Robert  M.  Lewis,  Isaac  C.  Jones,  Robert  Wharton,  Thomas 
Fassit,  John  Hemphill,  Ambrose  White,  and  William  Piatt,  directors 
of  the  company.  Secretary  and  treasurer,  Henry  D.  Gilpin;  engi- 
neer in  chief,  Benjamin  Wright;  engineer  resident,  Daniel  Liver- 
more;  superintendent,  Caleb  Newbold,  jun." 

East  end.  "  The  construction  of  this  canal  was  begun  on  the  15th 
of  April,  1824,  by  Sila^  E.  Weir,  the  chairman  of  the  first  committee 
of  works,  whose  zealous  and  efficient  services  to  the  company  termi- 
nated, with  his  life,  on  the  14th  day  of  May,  1828.  He  was  suc- 
ceeded by  Robert  M.  Lewis,  under  whose  active  supervision  the 
work  was  continued  and  finished.  In  its  progress  though  the  eastern 
level  large  sections  of  embankment  sunk  100  feet  below  the  adjoin- 
ing surface,  and  the  bottom  of  the  excavation  rose  40  feet  above  its 
natural  position.  On  the  deep  cut  more  than  375,000  cubic  yards  of 
earth  slipped  from  the  regulated  slopes  of  the  sides,  and  passed  into 
the  chamber  of  the  canal.  These  and  many  other  difficulties  having 
been  overcome,  the  water  was  introduced  on  the  4th  of  July,  1829, 
and  the  final  accomplishment  of  this  great  national  work  was  cele- 
brated on  the  17th  of  October  of  the  same  year,  at  which  time  the 
navigation  was  opened." 

West  end. — "  Length  of  canal,  13§  miles.  Width  at  water  line,  66 
feet.  Width  at  bottom,  36  feet.  Depth  of  water,  10  feet.  Depth 
of  excavation  at  summit,  76  1-2  feet.  Extreme  width  of  section  at  sur- 
face, 366  feet.  Excavation  from  deep  cut,  3,500,000  cubic  yards. 
Length  of  locks,  100  feet.  Width  of  locks,  22  feet.  Length  of 
summit  bridge,  247  feet.  Height  above  bottom  of  canal,  90  feet. 
Total  cost,  2,250,000  dollars,  of  which  450,000  was  paid  by  the 
United  States,  $100,000  by  the  state  of  Pennsylvania,  $50,000  by 
the  state  of  Maryland,  $25,000  by  the  state  of  Delaware,  and  the  resi- 
due by  citizens  of  Pennsylvania,  Maryland  and  Delaware." 

Plff.  also  produced  models  of  the  tide  lock,  with  guard  gates,  &c. 
and  of  the  hopper  boats  used  in  boating  the  earth. 

The  depositions  of  Townsend  and  Dewit  were  offered  to  sustain 
the  character  of  Wm.  S.  Randel,  and  admitted,  and  the  deposition  of 
Josiah  F.  Clement  was  rejected. 

George  W.  Smith,  Esq.  sworn.     Gives  a  history  of  the  proceed- 


I 


Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  301 


ings  of  the  board  previous  to  the  declaration  of  abandonment.  I 
called  as  the  friend  of  ^Ir.  Eandel,  and  requested  to  read  his  defence 
and  comment  on  it.  They  refused.  They  also  refused  to  permit  me 
to  read  it  without  comment.  I  stated  that  Eandel  was  ill,  had  been 
cupped  on  his  head  and  neck;  that  he  was  then  attacked  with  coma. 
He  was  unable  to  appear  and  make  his  defence.  They  still  refused  to 
let  me  appear  for  him.  I  remarked  that  they  treated  him  with  neither 

justice  nor  common  decency.    ^\t. came  round  and  said  in  a 

violent  manner,  you  will  please  remember  that  remark,  Mr.  Smith! 
I  told  him  I  should  remember  it,  and  that  I  held  myself  responsible 
to  him  for  it.  He  said,  no,  sir,  not  to  me,  but  the  board.  I  replied, 
to  him  or  any  member  of  the  board.  I  heard  no  more  of  it.  Be- 
fore it  was  known  that  Wright  had  given  the  certificate,  I  heard  vari- 
ous rumors  at  the  canal  that  the  contract  was  about  to  be  taken  from 
Randel;  there  was  quite  a  riot,  and  the  work  suffered  much  hin- 
drance in  consequence  of  these  rumors.  1  called  on  some  of  the 
members  of  the  board  and  represented  this  state  of  things,  and  from 
conversations  with  them  I  became  satisfied  the  rumors  were  un- 
founded. This  was  after  the  certificate  was  given.  I  returned  to 
the  canal  and  endeavored  to  quiet  the  apprehensions  of  the  workmen 
and  others,  and  I  unfortunately  subjected  Mr.  Sutton  to  loss.  I  am 
confident  that  John  Randel  did  not  know  of  the  certificate  until  it 
was  officially  communicated  to  him. 

Mr.  Smith  was  asked  if  he  did  not  think  his  mind  was  under  some 
degree  of  bias  from  the  influence  of  ardent  feelings  in  favor  of  his 
friend  the  plaintiff. 

Answer.  If  a  thorough  abhorrence  of  the  unjust  and  cruel  conduct 
of  this  company  towards  John  Randel,  and  a  perfect  conviction  of  his 
wrongs,  be  a  bias,  I  have  it.  As  his  friend  I  have  labored  for  years, 
and  shall  still  labor,  to  bring  this  company  to  justice.  I  "Hesire,  and 
Randel  need  want,  nothing  more.  I  have  devoted  much  of  my  life 
to  the  study  of  engineering,  and  in  visiting  the  principal  canals  in 
this  country  and  in  Europe.  I  am  not  a  practical  engineer,  but  have 
studied  the  subject  for  my  pleasure;  it  is  my  hobby.  Describes  the 
construction  of  the  Caledonian  canal,  the  use  of  hopper  boats  and 
dams,  the  banks  in  Holland  to  keep  off  the  water  of  the  Zuyder  Zee. 
They  are  made  of  a  light,  spongy  substance,  slightly  mixed  with 
earth,  similar  to  our  horse  dung  mud,  laid  upon  brush.  Sand  will 
not  do.  A  mountain  of  sand  would  not  keep  out  water.  Has  exam- 
ined the  horse  dung  mud  of  the  St.  George's  marsh;  it  will  make  a 
bank,  and  a  good  bank;  it  is  the  proper  material.  The  height  of  the 
guard  banks  as  increased  by  Wright  has  been  the  subject  of  much 
ridicule  among  scientific  men;  it  is  perfectly  absurd.  It  was  de- 
stroyed by  its  own  weight.  The  oi  'ginal  height  would  have  kept  the 
water  in  the  canal. 

The  testimony  on  both  sides  closed  January  3d,  1834, 

The  case  was  argued  at  great  length  before  the  jury  by  Read,  jr., 
Rogers,  Ingersoll  and  Clayton,  for  the  plff.  and  by  Bayard  and 
Jones,  for  the  defts. 

In  the  course  of  the  argument  the  court  was  requested  to  charge 
the  jury  on  a  great  number  of  points,  among  whict  the  most  im- 
portant were  the  following: 


30'2  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

On  the  part  of  the  plaintiff: 

First.  That  there  are  five  covenants  on  which  the  plff.  has  sued; 
the  covenant  to  pay  for  work  as  certified  by  the  engineer  of  the  com- 
pany for  the  time  being;  that  the  works  during  their  progress  should 
be  carefully  examined  and  inspected;  that  the  number  of  cubic  yards 
of  excavation  and  embankment  should  be  faithfully  estimated  by  a 
competent  engineer;  that  if  by  the  default  of  the  company  Randel 
should  be  prevented  from  pursuing  the  due  and  best  mode  of  exe- 
cuting his  contract  in  any  particular,  or  should  be  prevented  from 
entering  upon  or  flooding  lands,  the  engineer  of  the  company  should 
certify  the  damage:  and,  that  the  time  allowed  to  Randel  to  do  the 
work  should  not  be  less  than  four  years  from  the  first  May,  1824. 

Second.  That  the  defts.  by  their  demurrer  to  the  seventh  coimt 
have  confessed  that  they  did  not  allow  Rsidel  four  years  to  do  the 
work,  and  the  jury  are  bound  to  assess  the  damages  for  the  breach  of 
that  covenant  whether  he  did  or  did  not  unreasonably  neglect  the 
work  because  the  defts,  have  not  pleaded  the  abandonment  to  that 
count. 

Third.  That  the  true  standard  of  damages  to  be  recovered  on  that 
seventh  count  is  not  the  mere  profit  that  Randel  would  have  made 
on  the  whole  contract  had  he  been  allowed  to  finish  it;  but  the  loss 
he  incurred  by  being  illegally  driven  from  it:  that  in  order  to  ascer- 
tain the  loss  the  jury  must  estimate  the  profit  on  the  work  remain- 
ing to  be  done  after  the  first  October,  1825,  and  add  to  it  all  the  loss 
fairly  arisiilg  from  the  illegal  dismissal  of  Randel;  and  particularly 
his  loss  of  time,  the  derangement  of  his  affairs  and  business,  the  ten 
per  cent,  on  the  $224,000,  earned  by  him  before  the  first  of  Octo- 
ber, 1825,  and  ten  per  cent,  on  the  work  remaining  to  be  done,  and 
the  injury  to  his  professional  reputation  if  any  necessarily  occurred 
from  the  manner  of  his  dismissal. 

Fourth.  That  it  stands  confessed  of  record  by  the  defts.  plea  of 
abandonment  to  the  five  first  breaches  in  the  second  count,  and  to 
the  fourth  and  eighth  breaches  in  the  third  count;  first,  that  the 
works  during  their  progress  were  not  carefully  examined  and  in- 
spected; second,  that  neither  Benjamin  Wright  nor  any  other  com- 
petent engineer  selected  by  the  company  did  estimate  the  number  of 
cubic  yards  of  excavation  and  embankment;  and  that  the  jury  are 
bound  to  consider  these  confessions  on  the  trial  of  the  replication  of 
waiver  to  the  plea  of  abandonment.  Third,  that  the  defts,  have  con- 
fessed, by  this  plea,  all  the  material  allegations  in  the  third,  fourth 
and  fifth  breaches  of  the  second  count,  and  the  fourth  and  eighth 
breaches  of  the  third  count,  and  especially  the  following:  that  Ran- 
del "  was  from  default  of  the  company,  on  divers  days  and  times  be- 
tween the  26th  of  March,  1824,  and  the  20th  of  October,  1825,  pre- 
vented from  pursuing  the  due  and  best  mode  of  executing  his  con- 
tract, and  that  the  pecuniary  damage  sustained  by  him  in  consequence 
thereof,  was  the  sum  of  $256,000;  and  that  the  said  pecuniary  dam- 
age was  not  certified  by  the  engineer  of  the  company  for  the  time 
then  being : "  that  from  the  default  of  the  company  the  plaintiff  was 
"  on  or  about  the  third  day  of  October,  1825,  prevented  from  enter- 
ing upon  lands,"  &c. ;  that  the  pecuniary  damage  was  $256,000, 
and  that  said  damage  was  not  certified  by  the  engineer  although  he 


I 


Randel,  Jun.  vs.  Cues.  &  Del.  Caxal  Company.  303 

well  knew  the  premises:  that  Randel  was  prevented  from  flooding 
lands,  &c.,  and  that  the  damage  amounted  to  $356,000,  whicli  was 
not  certified,  &c. :  that  the  said  company  on  the  19th  of  October, 
3825,  did  prevent  Bandel  from  entering  upon  lands  which  were  neces- 
sary to  be  occupied  by  him  for  the  use  of  the  work,  and  so  took 
the  time  to  be  less  than  four  years,  &c. :  the  pecuniary  damage  re- 
sulting from  which  default  was  the  sum  of  $356,000,  which  was  not 
certified,  &c. :  and  that  the  company  did,  on  the  19th  October,  lS35, 
dispose  of  the  contract  to  Clement,  Blackstock  and  Vanslyke,  and 
thus  obstructed  Randel  in  the  performance  of  the  work  and  pre- 
vented him  from  pursuing  tlie  due  and  best  mode  of  executing  it; 
that  the  damage  arising  from  this  prevention  was  $356,000,  wliicli 
the  engineer  of  the  company  did  not  certify,  &c..;  all  of  which  con- 
fessions and  admissions  in  the  pleadings  the  jury  arc  bound  to  con- 
sider in  trying  the  issue  arising  on  the  replication  jf  "  waiver  "  to 
the  plea  of  "  abandonment.'" 

Fifth.  That  under  the  covenant  to  pay  for 'work  done  as  certified 
by  the  engineer,  for  the  time  being,  the  .plff.  is  entitled  to  recover 
all  such  sums  of  money  as  are  contained  in  the  semi-monthly  certifi- 
cates of  Henry -Wright  and  Daniel  Livermore  and  Benjamin  Wright 
while  acting  as  engineers  for  the  time  being,  although  those  sums 
should  be  excluded  from  the  final  estimate  made  by  Benjamin 
Wright  on  the  loth  December,  1835. 

Sixth.  That  the  covenants  carefully  to  examine  and  ins])ect  the 
work,  and  to  estimate  the  number  of  cubic  yards  of  excavation  and 
embankment,  mean  that  the  company  bound  itself  to  Randel  that 
those  works  should  be  honestly  and  justl)'^  measured,  and  when  so 
measured  should  be  honestly  and  justly  certified,  and  that  therefore 
under  these  covenants  the  company  is  responsible  in  damages  to  Ran- 
del for  the  work  he  did,  whether  certified  or  not,  and  not  only  for 
the  value  of  that  work  at  the  time  it  tuas  done,  but  for  all  the  inju- 
rious consequences  necessarily  resulting  to  Randel  from  not  justly 
measuring,  certifying  and  paying  for  the  work  at  the  time  when  it 
was  done,  according  to  the  terms  of  the  contract. 

Seventh.  That  the  resolution  of  the  fourth  of  November,  1824, 
directing  that  no  certificates  should  be  given  for  work  done  on  sec- 
tion No.  3,  if  the  contractor  do  not  go  to  bottom,  unless  otl  erwise 
ordered  by  the  engineer,  renders  the  company  responsible  for  exem- 
plary damages  arising  from  prevention  on  that  section;  because  the 
said  resolution  is  arbitrary,  cruel  and  o])pressive,  and  contrary  to  the 
terms  of  the  contract  it  professes  to  delegate  to  the  engineer  the 
power  to  withhold  certificates  for  work  done,  and  thereby  renders 
the  company  responsible  for  the  acts  of  prevention  of  the  said  engi- 
neer in  regard  to  that  section,  whether  arising  from  malice  or 
mistake. 

Eighth.  What  acts  of  the  company  would  amount  to  a  waiver  of 
the  certificate  of  Wright  of  30th  July,  1825. 

That  it  is  not  necessary  for  plff.  to  prove  the  want  of  notice  of  that 
certificate  it  being  immaterial  to  the  issue;  but  if  proved,  that  it  is 
per  se  a  substantive  ground  of  exemplary  damage. 

Ninth.  That  the  resolutions  of  the  i9th  and  24th  of  July,  1824, 
whereby  Randel  was  notified  that  no  part  of  the  harbor  should  be 


304  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

begun  until  a  new  contract  for  it  should  be  defined  and  executed 
were  unjustifiable  and  not  warranted  by  the  terms  of  the  eonfract. 

Tenth.  That  all  other  orders  directing  Kandel  to  work  on  any 
part  of  the  contract  against  his  own  judgment,  and  counteracting 
his  own  plans  of  operation,  or  preventing  him  from  pursuing  his  own 
mode  of  executing  his  contract  were  not  warranted  by  the  terms  of 
the  contract;  and  that  the  jury  are  bound  to  assess  all  damages  aris- 
ing from  such  orders. 

Eleventh.  That  the  revised  schedule  was  not  and  could  not  be 
retrospective  in  its  operation. 

Twelfth.  That  the  contract  provides  that  the  banks  of  the  canal 
should  be  constructed  of  the  best  earth  the  adjoining  excavation 
would  give,  and  that  whether  that  excavation  afforded  a  material  unfit 
for  said  banks  or  not  the  plff.  was  entitled  and  was  bound  to  use  it. 

Thirteenth.  That  the  plff.  was  to  be  paid  by  the  cubic  yard  for 
his  work;  and  that  for  all  slips  from  the  regulated  slopes  of  the  canal 
the  plff.  was  to  be  paid  as  well  as  for  other  excavation  by  the  cubic 
yard.  So  of  all  earth  pressed  up  in  the  chamber  of  the  canal  by  the 
sinking  of  a  bank  or  ccher  such  cause. 

Fourteenth.  That  the  covenant  of  Daniel  Ne-.vbold,  dated  the  4th 
of  August,  1823,  did  not  entitle  the  canal  company^  to  the  possession 
of  section  No.  2,  nor  did  they  get  possession  of  these  lands  until  put 
in  possession  by  the  writ  of  habere  facias  possessionem ;  and  that  the 
issuing  of  that  writ  is  an  admission  by  the  defendants  that  they  were 
not  in  possession  at  that  time. 

On  the  part  of  the  defendants  the  court  was  requested  to  charge 
the  jury  on  the  following  points: 

First.     On  the  covenant  to  pay  for  work  certified. 

That  on  the  fifth  breach,  third  count,  the  final  certificate  is  con- 
clusive as  to  the  work  and  price  certified;  and  the  amount  not  paid  is 
fixed  by  agreement  at  $2,863  05,  with  interest  from  October  first, 
1826. 

That  on  the  seventh  breach  the  replication  of  fraud  being  spe- 
cially traversed  and  issue  joined,  the  only  fact  for  the  jury  to  deter- 
mine is  whether  the  award  of  Benjamin  Wright  revising  the  prices 
is  a  genuine  paper  and  not  obtained  from  him  by  the  fraud  of  the 
defts. ;  and  that  the  payment  /or  work  certified  is  admitted  by  the 
pleadings  as  to  this  breach,  and  the  verdict  on  it  must  be  for  defts. 
unless  the  jury  find  that  the  defts.  obtained  the  award  from  Wright 
by  fraud  practised  on  him. 

Second.  The  covenants  to  inspect  and  examine  the  works  and 
certify  the  amount  of  excavation  and  embankment. 

To  the  fourth,  fifth  and  sixth  counts  the  defts.  have  pTeaded  the 
appointment  of  Wright  as  inspector,  and  also  the  declaration. 

That  the  final  and  other  estimates  and  certificates  of  Benjamin 
Wright  having  been  given  in  evidence,  the  issues  on  these  counts 
are  proved  and  the  verdict  must  be  for  the  defts.  That  these  pleas 
being  a  bar  to  those  counts  it  is  not  necessary  to  consider  the  other 
pleas  to  the  same  counts. 

That  as  to  the  first  and  second  breaches  of  second  count. 

Defts.  have  pleaded  the  certificate  of  abandonment  and  plff.  replied 
the  waiver  on  which  issue  is  joined,  and  that  if  that  issue  is  found 


I 


Randel,  Jun.  vs.  Cues.  &  Del.  Caxal  CoMrANY,  305 

for  the  defts.  tliere  must  be  a  verdict  for  defts.  on  these  breaches, 
and  if  against  them,  that  though  the  verdict  must  be  for  the  plff.  the 
admission  on  the  record  of  want  of  inspection  or  estimates,  entitles 
the  plff.  only  to  nominal  damages. 

That  the  actual  damage,  if  any,  must  be  proved  by  the  plff.  That 
the  only  legal  damages  recoverable  under  these  breaches  is  for  the 
excavation  and  embankment  proved  to  have  been  done.  That  as  the 
plff.  has  given  in  evidence  the  certificates  of  the  engineer  they  are 
conclusive  as  to  the  amount  of  work  done.  That  if  not  conclusive 
they  are  at  least  prima  facie  evidence  of  work  done,  and  plff.  must 
not  merely  falsify  them,  but  prove  that  work  was  done  more  than 
was  certified.  That  this  being  an  action  of  covenant  it  lies  on  the 
plff.  to  prove  the  amount  of  damage,  and  that  the  mere  proof  of  loss 
without  proving  the  amount,  or  facts  by  which  the  jury  can  estimate 
the  amount,  will  not  authorize  more  than  nominal  damages  on  this  or 
any  other  breach.  That  the  damages  in  this  action  are  neither  ex- 
emplary nor  vindictive,  and  that  the  jury  cannot  exercise  an  arbitrary 
discretion  in  assessing  damages,  but  can  allow  only  such  damages  as 
the  plff.  has  actually  proved  either  positively  or  by  proof  of  facts 
from  which  the  quantum  of  damages  may  be  estimated. 

Third.     The  prevention  covenant. 

That  on  the  breaches  assigned  on  this  covenant,  the  third,  fourth 
and  fifth  of  second  count,  and  fourth  and  eighth  of  third  count,  the 
verdict  must  be  for  the  defts.  if  their  plea  of  abandonment  is  sus- 
tained; and,  if  not,  that  only  nominal  damages  are  admitted  by  the 
pleadings;  and  that  plff.  must  prove  actual  damage  sustained.  That 
he  must  prove  acts  of  prevention;  and  that  orders  of  the  engineer 
or  defts.  though  illegal,  assented  to  by  the  plff.,  are  no  ground  of 
damage  and  cannot  be  considered  by  the  jury  for  that  purpose.  That 
upon  the  breaches  on  this  clause  specifying  no  particular  act  of  pre- 
vention the  defts.  have  admitted  no  specific  act,  and  that  until  the 
jury  are  satisfied  by  the  proof  of  some  act  of  prevention  and  of  dam- 
age, and  the  amount  thereof,  they  can  only  give  nominal  damages 
on  these  breaches. 

That  the  amount  of  damages  is  in  no  case  confessed  by  the  plead- 
ings. 

That  in  determining  the  question  of  waiver  the  jury  cannot  take 
into  consideration  any  matter  previous  to  the  certificate  of  July  30th, 
1825,  whether  proved  in  the  cause  or  admitted  by  the  pleadings. 

Fourth.  Covenant  as  to  taking  time. 

That  the  sixth  and  fourteenth  breaches  are  traversed,  and  there  is 
no  admission  as  to  them. 

That  the  seventh  count  containing  a  general  allegation  of  taking 
the  time  without  stating  any  specific  act  by  which  they  so  took  the 
time,  no  act,  and  only  nominal  damages  are  admitted  by  the  demur- 
rer; and  that  if  the  declaration  of  abandonment  was  legal  and  the 
certificate  not  waived,  no  other  act  has  been  proved  in  the  cause 
which  the  jury  can  consider  in  assessing  damages  on  this  breach,  and 
thev  must  therefore  be  nominal. 

That  in  assessing  damages  the  intention  of  a  party  in  breaking  a 
covenant  cannot  be  considered  with  a  view  to  increase  the  amount. 

39 


oOG  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

That  the  only  measure  of  damages  which  the  jury  can  take  in  as- 
sess^ing  the  damages  on  alleged  breaches  of  this  covenant  is  the  profit 
j)lif.  would  have  made  after  tlie  lir'^t  of  October,  1825;  that  if  the 
jury  believe  that  the  plff.,  had  he  been  i)ermitted  to  proceed  in  his 
work,  would  not  have  bettered  his  pecuniary  affairs  more  than  when 
the  contract  was  abandoned,  they  can  give  only  nominal  damages, 
even  if  the  certificate  of  abandonment  was  waived. 

That  in  giving  damages  on  any  breach  assigned  in  the  declaration, 
the  jury  cannot  consider  either  any  alledged  loss  of  reputation  to 
pltf.  or  other  matters  than  such  as  directly  flow  from  the  breach  as 
alleged  and  proved. 

That  any  deviation  made  by  the  defts.  from  the  line  of  the  canal 
or  the  construction  of  the  works  generally  as  reported  by  the  plff. 
cannot  be  insisted  upon  as  a  ground  of  damage  in  this  action,  nor  can 
the  jury  consider  any  such  deviation  for  the  purpose  of  allowing 
damages. 

That  the  provision  contained  in  the  contracts  of  plff.  with  his  sub- 
contractors, directing  them  to  obey  the  orders  of  the  engineer-in-chief 
of  the  defts.  did  not  impose  on  the  engineer  a  duty  to  give  orders  to 
the  sub-contractors  to  go  to  bottom  on  section  3  so  as  to  constitute  a 
default  of  defts.  by  reason  of  the  omission  of  such  orders,  but  that  the 
order  to  go  to  bottom  being  given  directly  to  the  plff.  it  was  his  duty 
to  attend  to  its  execution  by  his  sub-contractors. 

That  the  prices,  when  revised  by  the  award  of  the  engineer,  June 
5th,  1824,  necessarily  operated  on  work  previously  done;  and  that 
the  claim  of  the  plff.  to  the  sum  alledged  to  be  due  at  16  7-10  cents 
for  the  first  ten  feet  allowed  at  that  price  in  the  certificate  of  May 
29th,  1824,  and  afterwards  reduced  to  14^  cents  per  cubic  yard  in 
the  certificate  of  June  23d  of  the  same  year,  is  not  good  in  law. 

The  argument  in  chief  before  the  jury,  in  the  course  of  which  the 
foregoing  points  were  made,  commenced  on  Saturday,  January  4th, 
and  closed  on  Tuesday,  January  21st,  1834;  when 

Mr.  Justice  Harrington  charged  the  jurj',  in  substance,  as  fol- 
lows : 

Gentlemen  of  the  jury: 

The  period  has  at  length  arrived  in  the  progress  of  this  cause  when 
you  are  to  become  the  chief  actors  in  it.  Hitherto  your  part  has  been 
v)ne  rather  of  patient  attention ;  now  it  must  be  one  of  laborious  inves- 
tigation, of  judicious  and  enlightened  decision.  Upon  you,  after  all, 
devolves  the  responsible  duty  of  administering  justice  as  between 
these  parties.  The  law  has  made  you  the  exclusive  judges  of  the 
facts  in  issue,  of  the  credibility  of  witnesses,  and  of  the  weight  of 
their  testimony.  It  has  wisely  concluded  that  "  twelve  judicious  and 
impartial  persons,  inhabitants  of  the  bailiwick,  lawful  men  of  fair 
characters  and  standing  indifferent  between  the  parties,"  would  be 
more  likely  to  arrive  at  the  truth  and  dispense  with  greater  certainty 
and  impartiality  the  principles  of  remunerative  justice  than  any  other 
tribunal  which  the  wisdom  of  man  has  yet  devised.  Occupying  this 
distinguished  position,  it  can  surely  need  no  remarks  from  us  to  en- 
force the  obligations  you  are  under,  not  only  in  reference  to  the  par- 
ties in  this  cause,  but  to  the  public,  in  sustaining  the  character  of  that 


I 


EA.NDEL,  JUX.  VS.  ClIES.  &  DeL.  CaXAL  COMPANY.  307 

tribunal  which  they  regard  as  the  highest  safeguard  of  their  rights. 
Nor  is  it  so  much  our  purpose  to  comment  on  your  duty  as  to  dis- 
charge what  is  appropriately  our  own,  by  directing  your  particular 
attention  to  the  leading  points  in  the  case  before  you,  and  applying 
to  them  the  principles  of  law,  so  far  as  legal  principles  are  connected 
with  them,  or  will  conduce  to  a  more  perfect  understanding  of  the 
subject. 

We  are  trying,  gentlemen,  an  action  of  covenant:  an  issue  of 
breach  of  covenant:  an  inquiry  into  loss  and  damage  arising  from 
breach  of  coveant:  and  a  claim  of  compensation  in  damages  for 
breach  of  covenant.  This  simple  statement  of  the  nature  of  the  ac- 
tion describes  your  whole  duty.  It  circumscribes  the  range  of  your 
inquiries;  it  points  out  the  nature  of  the  complaint,  the  issue  to  be 
tried,  the  result  to  be  sought  for,  and  the  manner  and  the  rule  of 
ascertaining  that  result.  It  embraces  an  inquiry  into  legal  rights 
growing  out  of  contract;  into  alledged  wrongs  from  the  violation  of 
those  rights;  damage  and  loss  resulting  from  such  wrongs,  and  com- 
pensation therefor.  The  rights  of  the  plff.  are  to  be  ascertained  from 
the  contract;  the  violation  of  them  from  the  acts  of  the  defts. ;  and 
the  damages  are  to  be  proportioned  to  the  injury  and  loss  resulting 
from  such  acts.  There  is  no  malice  here  as  a  ground  of  damage ;  no 
inquiry  into  character,  either  private  or  professional,  as  a  ground  of 
damage;  no  vindictive  or  exemplary  damages  whatever.  The. ques- 
tion is  of  contract  rights;  of  acts,  not  motives,  violating  those  rights, 
and  of  actual  damage  arising  from  such  acts.  Let  us  not  be  misun- 
derstood on  this  subject  of  malice.  Malice  in  itself  is  not  a  ground 
of  damage,  because  without  an  act  it  violates  no  covenant:  it  may 
prompt  the  act,  and  in  that  view  may  be  considered  in  proof  of  the 
act;  but  then  the  act  itself,  and  not  the  malice,  is  the  ground  of  dam- 
age, for  the  consequences  of  that  act  are  equally  injurious  to  the 
plaintiff,  and  no  more  injurious,  whether  it  was  founded  in  malice  or 
not.  Could  it  be  said  that  if  the  defts.  had  violated  their  contract 
with  Mr.  Eandel  and  done  him  injury  through  ignorance  or  innocent 
mistake,  or  from  motives  the  most  friendly  to  him,  they  would  not 
he  liable  in  this  suit  to  compensate  him  for  that  injury  without  refer- 
ence to  their  motives?  With  what  propriety,  then,  shall  we  look 
into  motives  with  a  view  to  increase  the  damages?  We  have  said 
also  that  vindictive  or  exemplary  damages  are  not  to  be  given  in  this 
action.  By  exemplary  or  vindictive  damages  is  meant  something 
over  and  above  the  actual  loss  or  damage  accruing  to  the  plff.  by  rea- 
son of  the  defts.'  conduct,  and  which  in  certain  actions  of  to7-t  the 
jury  are  permitted  to  give,  to  an  unlimited  amount,  for  the  sake  of 
public  example  and  warning  to  others.  But  it  is  not  so  in  actions  on 
contract,  or,  at  least,  in  this  action  of  covenant,  which  is  merely  for 
compensatory  or  remunerative  damages.  The  jury  are  to  make 
the  plff.  whole:  to  weigh  out  to  him,  as  it  were,  from  the  scales  of 
justice,  remuneration  and  compensation  for  his  wrongs.  We  shall 
hereafter  speak  more  particularly  of  the  rule  and  measure  of  damages 
in  this  action,  and  refer,  perhaps,  to  some  specifications  of  alledged 
injury  and  loss. 

''  There  is  one  thing,  and  perhaps  only  one,  about  which  both  the 
parties  agree  in  this  cause:  that  for  all  the  work  which  the  plff.  per- 


308  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

jformed  in  pursuance  of  his  contract,  and  for  which  he  has  not  been 
actually  paid  by  the  defts.  he  is  entitled  to  recover  in  this  action. 
You  will  therefore  consider  and  determine  from  the  evidence  which 
lias  been  laid  before  you  what  that  sum  is,  by  ascertaining  the  value 
of  the  work  done,  and  the  payments  which  have  been  actually  made 
towards  it,  and  whatever  may  be  the  difference,  that  must  necessarily 
be  your  verdict  on  this  part  of  the  case. 

Having  ascertained  thus  much,  your  next  inquiry  will  be,  is  the 
contract  in  relation  to  all  othfer  matters  in  litigation  at  an  end?  You 
must  be  fully  aware  by  this  time  that  there  is  a  clause  in  this  contract 
which  declares  that  if  the  engineer-in-chief  for  the  time  being  shall 
be  of  opinion  that  the  plff.  has  unreasonably  neglected  to  prosecute 
his  contract,  he  may  certify  the  fact  to  the  defts.  and  that  they  on  his 
certificate  may  declare  the  contract  to  be  abandoned,  and  thus  dis- 
charge themselves  from  all  its  obligations,  except  to  pay  for  work  al- 
i-eady  c  ne.  This  is  a  very  important  inquiry,  and  demands  your 
t^erious  ..crention. 

The  defts.  plead  that  on  the  30th  of  July,  1825,  Benjamin  Wright, 
the  cngineer-in-chief  of  the  company  for  the  time  being  was  of  the 
opinion  that  the  plff.  had  unreasonably  neglected  to  prosecute  his 
contract,  and  that  on  that  day  he  did,  in  and  by  his  certificate,  certify 
his  opinion  to  the  defts.,  and  that  on  the  30th  of  September  following 
the  defts.  did  thereupon  on  the  said  certificate  determine  the  said 
contract  to  be  abandoned  by  the  plff.,  of  which  said  certificate  and 
determination  the  plff.  had  notice  on  the  first  of  October,  by  means 
whereof  the  defts.  were  entirely  exonerated  from  every  obligation 
imposed  on  them  by  the  articles  of  agreement,  except  to  pay  for  work 
already  done.  The  replication  of  the  plff.  in  answer  to  this  confesses 
these  facts;  but  avoids  them  by  the  matters  which  it  discloses.  These 
matters,  so  far  as  it  is  material  here  to  state  them,  are:  that  during 
all  the  time  between  the  30th  July  and  the  first  October  the  plff.  was 
diligently  prosecuting  his  contract,  and  did  with  great  expense  and 
labor  prosecute  the  said  contract,  under  the  inspection,  by  and  with 
the  permission,  and  by  and  under  the  direction  of  the  company;  and 
that  during  that  period  the  defts.  paid  for  such  work  divers  sums  of 
money;  that  the  work  thus  performed  was  less  profitable  and  more 
disadvantageous  than  the  work  remaining  to  be  done,  and  that  the 
work  remaining  to  be  done  after  the  first  of  October  was  that  portion 
of  the  whole  work  to  be  done  which  was  most  profitable  and  advan- 
tageous to  him ;  and  concludes  by  alledging  a  waiver  of  the  certificate 
and  a  ratification  of  the  contract.  To  this  replication  the  defts.  re- 
join, and  by  that  rejoinder  put  these  matters  in  issue. 

The  facts  which  have  been  given  in  evidence  to  you  in  support  of 
this  issue  are  these.  On  the  30th  of  July,  1825,  Benjamin  "Wright, 
the  engineer-in-chief  for  the  time  being  as  is  alledged,  certified  his 
opinion  to  be  that  Randel  had  unreasonably  neglected  to  prosecute 
his  contract;  the  directors  took  this  certificate  into  consideration,  and 
resolved  to  take  the  advice  of  counsel :  they  did  so,  and  obtained  that 
advice.  This  certificate  was  not  made  known  by  the  directors  to 
Randel  until  the  10th  of  September  following.  He  then  asked  for  a 
specification  of  the  charges  of  unreaf.onable  neglect.  This  was  re- 
fused him,  and  a  day,  perhaps  the  19th  of  September,  was  given  him 


^B    to  be  hei 


Randel,  Jun.  vs.  Cues.  &  Del.  Caxal  Company.  309 


to  be  heard  in  his  defence.  On  that  day  he  appeared  before  the 
board,  and  was  informed,  orally,  by  the  chairman,  of  the  charges 
against  him,  and  the  29th  of  the  month  was  appointed  for  a  hearing. 
In  the  mean  time,  on  the  23d,  the  following  preamble  and  resolution 
were  adopted: 

"  Whereas,  a  letter  of  this  date  was  read  by  the  chairman  of  the 
committee  from  a  member  of  the  board,  stating,  on  the  authority  of 
George  Washington  Smith,  who  has  just  returned  from  the  canal  line, 
that  the  men  in  Mr.  Eandel's  employ  are  deserting  in  detachments,  in 
consequence  of  a  report  that  his  contract  has  been  declared  aban- 
doned, and  that  he  is  allowed  only  ten  days  from  Monday  las  to  pre- 
pare for  his  departure,  which  report  being  untrue  and  calculated  to 
be  injurious  both  to  the  interests  of  the  contractor  and  this  company; 

Therefore,  resolved,  that  committee  Xo.  3,  now  on  duty,  be  re- 
quested to  proceed  as  soon  as  practicable  to  the  line  of  canal  for  the 
purpose  of  ascertaining  the  present  state  of  the  work  and  taking  such 
ineasures  as  they  may  in  their  sound  discretion  deem  necessary ;  which 
was  unanimously  adopted. 

Ordered,  that  a  copy  of  the  preamble  and  resolution  be  furnished 
to  committee  No.  3," 

On  the  29th,  the  day  appointed  for  hearing  Eandel,  he  was  ill,  and 
his  counsel  requested  that  he  might  be  heard  in  his  defence,  or  that 
he  might  be  permitted  to  read  his  defence.  This  was  refused,  and 
they  required  that  he  should  personally  attend  them.  He  did  so,  al- 
though from  ill  health  he  was  unable  to  complete  the  reading  of  his 
defence,  and  it  Avas  read  by  the  secretary  of  the  board.  No  deter- 
mination took  place  on  that  day,  but  on  the  day  following  the  con- 
tract was  declared  to  be  abandoned,  and  on  the  first  of  October  notice 
of  this  determination  was  given  to  the  plff. 

"  It  is  clear,  that  wherever  a  discretionary  power  is  given,  as  in  this 
case,  from  the  nature  of  the  thing  itself,  it  may  be  waived,  or  not  ex- 
ercised at  all;  for  otherwise  it  would  not  be  a  discretionar}'  power,  to 
be  exercised  or  not  as  the  party  might  think  best,  but  an  obligation 
which  he  could  not  dispense  with.  Here,  when  the  company  had  re- 
ceived the  certificate  of  the  engineer,  certifying  the  fact  that  he  was 
of  the  opinion  that  Eandel  was  unreasonably  neglecting  his  contract, 
that  contract  gave  them  the  power  on  that  certificate  to  declare  the 
contract  to  be  abandoned;  but  it  did  not  compel  them  to  do  so,  but 
left  it  optional  with  them  to  do  so  or  not.  This  certificate,  then,  or 
the  power  to  take  advantage  of  it,  might  be  waived.  Whenever  one 
person  has  an  election  to  do  or  not  to  do  an  act  in  which  the  rights 
and  interests  of  another  are  concerned,  he  is  bound  to  make  his  elec- 
tion so  as  to  be  least  prejudicial  to  the  rights  and  interests  of  that 
other;  and  if  by  his  unreasonable  delay  the  rights  of  that  other  be- 
come implicated  and  he  receives  injury,  who  ought,  in  justice,  in 
good  faith,  and  in  law,  to  bear  the  burthen  or  sustain  the  loss  —  the 
partv  injured,  or  he  who  has  caused  the  injury?  Common  sense  and 
the  law,  which  is  founded  on  good  sense,  say  the  defaulter:  that  he 
who  is  innocent  and  in  no  fault  shall  not  be  prejudiced  by  the  negli- 
gence of  the  other;  that  whenever  this  right  of  election  is  attempted 
to  be  so  negligently  exercised  that  a  manifest  and  irreparable  injury 
must  follow,  the  law  interposes  and  says,  you  have  waived  your  right 


310  Bandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company. 

to  elect;  you  cannot  now  exercise  it  without  injustice;  you  are  there- 
fore concludetl,  and  shall  not  exercise  it  at  all.  The  facts  are  before 
you  in  evidence,  on  which  an  opinion  must  be  made  up  on  this  mat- 
ter of  waiver.  From  the  30th  of  July  to  the  10th  of  September  no 
notice  was  given  by  the  defts.  of  the  existence  of  this  certificate  of  the 
engineer  to  the  plff.  During  these  six  weeks  he  was  laboring  on  his 
contract  with  a  force  equal  to  7  or  800  men,  and  as  he  alledges,  and 
of  which  you  will  judge,  at  low  and  reduced  prices,  under  the  revised 
schedule,  and  certainly  under  the  inspection  and  the  direction  of  the 
company,  "and  receiving  certificates  and  pay  during  that  time.  You 
will  judge  whether  the  work  thus  performed  by  the  plff.  was  less 
profitable  to  him  than  that  which  was  to  follow;  whether  the  defts. 
were  getting  an  advantage  by  having  the  work  thus  performed  at 
reduced  prices.  Consider,  too,  that  by  the  agreement  of  the  par- 
ties ten  per  cent,  was  reserved  for  contingencies,  no  part  of  which 
was  to  be  paid  to  the  plff.  till  the  entire  completion  of  the  work,  and 
ill  case  of  the  forfeiture  of  the  contract  he  never  could  demand  any 
part  of  it;  so  that  upon  all  the  work  performed  during  these  six 
weeks  or  two  months  ten  per  cent,  is  gained  by  the  company,  and  is 
consequently  lost  by  the  plff.,  or  at  least  his  claim  to  it  is  forfeited  if 
the  contract  has  been  rightly  declared  to  be  abandoned.  Has  this 
delay  of  the  defts.  produced  an  injury  to  the  plffs?  If  it  has,  its  ex- 
tent is  immaterial,  nor  is  it  necessary  to  inquire  whether  it  be  great 
or  small.  If  the  company  has  gained  an  advantage  by  their  own 
unreasonable  delay,  and  Randel  has  sustained  an  injury  by  it,  the 
company  has  waived  the  certificate  and  the  power  to  declare  the  con- 
tract abandoned,  and  of  course  that  contract  is  still  in  force.  This  is 
the  opinion  of  the  court. 

If  the  certificate  and  the  power  to  declare  the  contract  to  be  aban- 
doned were  at  any  time  waived,  no  subsequent  acquiescence  of  the 
plff.  could  create  a  new  forfeiture  of  the  contract.  Nothing  short  of 
an  additional  certificate  of  the  engineer  that  the  plff.  was  unreasonably 
neglecting  his  contract  could  work  a  forfeiture  of  it.  The  right  to 
take  advantage  of  a  forfeiture  may  be  waived,  but  it  is  a  new  princi- 
ple to  assert  that  a  forfeiture  may  be  created  by  a  sim])le  acquiescence. 
Such  a  doctrine  would  lead  us  to  believe  that  Randel  must  have  re- 
sisted his  expulsion  from  the  canal  with  force;  and  yet  no  one  would 
say  that  because  he  quietly  went  off  he  therefore  yielded  his  rights. 
The  moment  the  company  declared  against  him  and  would  no  longer 
treat  him  as  a  contractor  nor  pay  him  for  his  work,  his  perseverance 
would  have  been  folly  in  the  extreme.  It  is  what  neither  the  law  nor 
common  sense  required  of  him." 

Having  explained  to  you  the  nature  of  this  action  and  the  import- 
ant preliminary  question  of  waiver,  we  will  now  take  up  the  contract 
and  examine  its  covenants,  and,  together  with  the  pleadings,  present 
to  you  the  issues  to  be  tried,  and  the  breaches  on  which  damages  are 
claimed. 

There  are  five  covenants  upon  which  the  plff.  has  sued: 
First,  on  the  covenant  of  the  company  to  pay  the  plff.  for  work 
done  by  him  at  the  rates  specified  in  the  contract,  semi-monthly,  to 
the  amount  certified  by  the  engineer  of  the  company. 


I 


Raxdel,  Jux.  vs.  Cues.  &  Del.  Caxal  Compaxy.  311 

(5  B.  3d  count.)  There  are  two  Vjreaches  assigned  on  this  cove- 
nant, the  5th  and  Tth  of  the  3d  count.  The  first  alledges  tliat  Benja- 
min Wright,  on  the  15th  of  December,  1825,  certified  that  the  plff. 
had  done  work  to  the  amount  of  $224,291  51  which  he  avers  has  not 
been  paid.  The  defts.  plead  payment,  and  you  are  to  try  on  this 
breach  Avhether  the  defts.  have  paid  this  sum  or  not.  This  is  a  nar- 
row question,  and  you  will  take  up  the  certificates  and  receipts,  and 
see  what  is  due  to  the  plflf.  on  this  part  of  the  case.  The  defts.  ad- 
mit, as  we  understand,  thatihe  sum  of  $2,8G3  05,  with  interest  from 
the  first  of  October,  1825,  is  due  and  unpaid;  but  the  plff.  contends 
that  a  much  larger  sum  is  due  for  work  done  and  certified;  and  his 
counsel  have  attempted  to  point  out  to  you  several  instances  in  Avhich 
work  certified  for  in  the  semi-monthly  certificates  is  omitted  in  the 
final  certificate  of  the  15th  December,  thus  establishing,  as  they  con- 
tend, that  the  work  certified  for  in  the  detail  amounts  to  a  much 
larger  sum  than  is  certified  in  the  aggregate.  Whether  this  be  so  or 
not,  it  is  for  you,  gentlemen,  on  a  careful  investigation  and  examina- 
tion of  these  certificates,  to  determine.  You  will  first  ascertain  what 
sum  is  due  on  the  final  certificate,  and  if  the  previous  semi-monthly 
certificates  show  a  greater  amount  of  work  done  by  the  plff.  he  is  en- 
titled to  recover  the  value  of  that  work,  if  not  strictly  under  this 
breach,  certainly  under  other  breaches,  which  we  shall  presently  ad- 
vert to.  These  certificates  are  CA-idence  of  the  matters  contained  in 
them,  and  whetner  made  by  Benjamin  "Wright,  Henry  Wright,  or 
Daniel  Livermore,  as  agents  of  the  company,  if  they  establish  that 
the  plff.  has  done  more  work  than  is  included  in  the  final  certificate, 
it  is  a  proper  matter  for  your  consideration  in  fixing  the  amount  of 
your  verdict. 

(7  B.  3  count.)  The  jury  will  observe  that  the  price  of  the  work 
as  fixed  by  these  certificates  is  graduated  according  to  the  revised 
schedule  of  prices ;  the  other  breach  on  this  covenant  to  pay  for  work 
certified  avers  that  the  value  of  the  work  certified  to  be  done  was 
5^350,000,  taking  the  prices  fixed  originally  by  the  contract,  and  not 
the  revised  schedule.  To  this  breach  the  defts.  plead  that  Benjamin 
Wright  revised  the  schedule  of  prices,  as  by  the  contract  he  was  autho- 
rized to  do;  that  by  this  revised  scale  the  work  amounted  to  only 
$224,291  51,  which  they  have  paid.  The  plff.  replies  to  this  plea, 
that  the  said  revision  was  obtained  from  Wright  by  the  fraud  and  co- 
vin of  the  company;  to  which  they  rejoin,  that  the  revision  was  not 
obtained  by  any  fraud  or  covin  practised  by  them  on  Wright.  The 
issue  therefore  for  yon  to  try  on  this  breach  is,  whether  you  are  satis- 
fied by  any  evidence  in  this  cause  that  the  revision  of  prices  was  ob- 
tained from  Benjamin  Wright  by  any  fraud  practised  upon  him  by 
the  canal  company.  If  the  fraud  be  not  proved,  the  verdict  on  this 
breach  must  be  for  the  defts. ;  for  here  the  pleadings  admit  the  pay- 
ment for  work  certified,  and  only  put  in  issue  that  the  defts.  obtained 
a  revision  of  the  prices  by  fraud  and  covin. 

Should  vour  verdict  for  the  defts.  on  this  breach  establish  the  va- 
lidity of  the  revised  scale  of  prices,  that  scale  will  become  the  prin- 
ciple on  w'hich  you  are  to  ascertain  the  value  of  the  whole  work, 
with  the  single  exception  now  to  be  noticed.  The  revision  of  prices 
"was  made  between  the  first  and  seventh  of  June,  previously  to  which , 


312  Randel,  Jun.  is.  Cues.  &  Del.  Caxal  Company. 

the  engineer  had  certified  for  work  done  the  sum  of  $2,395  43,  ac- 
cording to  the  original  scale  of  prices,  over  and  above  what  the  same 
work  would  have  amounted  to  by  the  revised  scale,  and  the  engineer 
in  subsequent  certificates  deducted  this  sum  as  an  excess  of  payment; 
thus  applying  the  revised  schedule  to  previous  certificates,  and  giving 
it  a  retrospective  operation.  We  are  asked  to  say  to  you  whether 
this  application  of  the  revised  prices  was  a  legal  and  proper  one  ac- 
cording to  the  contract  of  the  parties.  That  contract  was,  that  the 
company  should  pay  Kandel  for  completing  his  work  the  sums  stated 
as  the  cost  thereof  in  his  estimate,  under  the  conditions  and  pro- 
visions of  the  annexed  schedule,  w^ith  a  provision,  that  in  order  to  se- 
cure the  company  against  future  delinquency,  and  at  the  same  time 
to  enable  the  contractor  to  make  progress  in  his  work,  it  should  be 
competent  to  the  parties,  at  any  time  between  the  first  and  seventh 
of  June  next,  to  revise  and  remodel  the  schedule,  and  change  the 
rate  of  payment.  If  this  power  of  revision  had  been  continuous 
from  the  date  of  the  contract  to  the  seventh  of  June,  we  should  have 
been  inclined  to  think  that  a  revision  made  during  that  time  would 
run  back  on  the  whole  work,  for  this  would  have  made  the  contract 
scale  merely  provisional  and  constantly  liable  to  revision;  but  under 
this  contract,  fixing  a  distant  period  when  the  contract  shall  as  it 
were  open  and  become  liable  to  revision,  it  does  appear  to  have  been 
the  intention  of  the  parties  that  the  scale  fixed  by  the  contract  should 
be  the  actual  price  for  all  work  done  down  to  the  first  of  June,  when 
these  prices  were  to  become  liable  to  revision  and  alteration  as  to  fu- 
ture work.  The  provision  was  undoubtedly  introduced  to  be  exer- 
cised only  as  experience,  derived  from  actual  progress,  should  teach 
that  the  prices  first  fixed  were  either  so  high  as  to  endanger  the  com- 
pany for  Tuture  delinquency  of  the  contractor,  or  so  low  as  that  he 
could  not  make  progress  in  the  work.  In  either  case  the  parties  had 
a  right,  not  within  a  given  period  from  the  date  of  the  contract,  but 
at  a  fixed  period  after  that  date,  to  revise  and  change  the  contract 
rate  of  payment.  Our  view  of  this  contract  then  is,  that  the  parties 
intended  to  apply  the  contract  scale  to  work  done  before  the  period 
of  revision;  and  that  the  company  could  not  give  the  revised  scale  a 
retrospective  operation  as  they  did  by  deducting  the  excess  from  sub- 
sequent certificates.  The  withholding  of  this  sum  of  $2,395  43  from 
certificates  made  after  the  7th  of  June  was  not  in  our  opinion  author- 
ized by  the  contract;  and  the  plff.  is  entitled  to  recover  that  sum, 
with  interest,  from  the  time  it  was  deducted  from  the  amount  of  his 
certificates. 

Second  and  third.  The  next  covenant  on. which  the  plif.  has  de- 
clared is  the  covenant  that  the  works  during  their  progress  should  be 
carefully  examined  and  inspected,  and  that  an  estimate  should  be 
made  of  the  number  of  cubic  yards  of  excavation,  and  also  of  em- 
bankment, by  Benjamin  "Wright,  esquire,  or  some  other  competent 
engineer  to  be  selected  by  the  companv.  The  pleadings  separate  this 
covenant  into  two  clauses,  dividing  the  covenant  for  inspecting  the 
works  from  the  covenant  to  estimate  the  amount  of  work  done,  but 
for  the  purpose  of  presenting  the  issues  to  you  on  this  occasion  we 
shall  consider  them  together.  The  obligation  of  the  company,  you 
understand,  was  to  have  the  works  carefully  examined  and  inspected 


Randel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  313 

during  their  progress,  and  an  estimate  made  by  a  competent  engineer 
of  the  number  of  cubic  yards  of  excavation  and  embankment.  The 
Dreaches  assigned  of  this  obligation  (being  tive  in  all)  are,  that  the 
works  were  not  inspected  during  their  progress  by  Benjamin  Wright, 
or  any  other  competent  engineer  appointed  by  the  company,  nor 
was  the  amount  of  the  work  estimated. 

(1st  and  2nd  Bs.  2d  count.)  The  single  plea  to  the  two  first 
breaches  on  this  covenant  (being  the  first  and  second  breaches  of  the 
second  count)  is  the  plea  of  "  abandonment; "  that  is  to  say,  that  the 
company  legally  put  an  end  to  this  contract,  as  by  the  terms  of  of  it 
they  were  authorized  to  do;  and  that  the  consequence  of  that  aban- 
donment was  to  absolve  the  company  from  all  obligations  under  it, 
except  to  pay  for  work  done.  To  this  plea  the  plff.  replies,  that  the 
company  "  waived  "  the  power  to  abandon  the  contract,  or,  in  other 
words,  exercised  it  in  such  an  illegal  manner  that  it  did  not  absolve 
them  from  any  of  their  obligations  assumed  by  the  contract,  among 
which  is  the  one  now  under  consideration.  That  branch  of  the  case 
has  already  been  explained  to  you,  and  you  are  first  to  determine,  in 
tb.e  trial  of  this  issue,  whether  under  the  charge  given  you  of  the 
legal  doctrines  embraced  in  this  question  of  waiver,  the  proof  in  the 
oau?f3  satisfies  you  that  the  company  have  waived  this  power  of  aban- 
donment. If  you  are  of  opinion  on  the  law  and  evidence  that  the 
defts.  have  not  waived  this  power,  there  is  of  course  an  end  to  this 
part  of  the  case,  and  you  can  assess  no  damages  on  this  covenant,  nor 
indeed  upon  any  of  the  covenants  in  the  contract,  except  the  cove- 
nant to  pay  for  work  done.  If,  however,  you  should  be  of  opinion 
that  the  company  did  so  waive  their  power  to  declare  the  contract 
abandoned,  you  are  then  to  inquire  whether  these  covenants  to 
insjject  the  work  and  estimate  the  amount  have  been  broken;  and,  if 
they  have,  what  damage  resulted  to  the  plff.  from  such  violation  of 
the  covenant.  And  here  we  are  required  by  the  plff.'s  counsel  to 
charge  you  that  the  state  of  the  pleadings  implies  certain  admissions 
by  the  defts.  that  these  covenants  have  been  broken.  You  observe, 
gentlemen,  that  the  plff.  alledges  in  his  breach  that  the  works  were 
not  inspected  by  Wright,  nor  by  any  other  competent  engineer  ap- 
pointed by  the  company,  and  that  neither  Wright  nor  any  other  com- 
petent engineer  appointed,  &c.  did  estimate  the  number  of  cubic 
yards  of  excavation  and  embankment.  The  defts.  instead  of  denying 
those  allegations,  rest  their  defence  on  the  plea  of  "abandonment;" 
of  course,  if  that  plea  fails  them,  as  it  will  if  the  Jury  sustain  the 
^'  waiver,"  the  pleadings  on  this  part  of  the  case  do  admit  that  the 
company  have  not  caused  the  works  to  be  inspected,  nor  the  amount 
thereof  to  be  estimated;  and  the  only  question  that  remains  for  you 
to  consider  is,  whether  this  failure  on  the  part  of  the  company  was 
injiirious  to  Mr.  Eandel,  and  what  amount  of  damage  he  sustained 
from  such  injury.  For  that  damage  you  must  refer  yourselves  to 
the  proof  which  the  plff.  has  laid  before  you,  as  it  is  incumbent  on 
him  to  satisfy  you  on  that  subject  by  proof  of  the  amount  of  his  loss 
or  of  facts  from  which  you  may  fairly  estimate  the  amount.  But  you 
are  not  confined  on  this  breach  to  the  mere  value  of  excavation  and 
embankment  proved  to  have  been  done,  nor  are  the  certificates  of 

40 


314  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

Benjamin  Wright,  Henry  Wright  and  Daniel  Livermore  conclusive 
of  the  amount  of  work  done.  To  give  these  certificates  such  an  opera- 
tion would  be  to  contradict  the  record  admissions  of  the  defts.  and 
to  set  up  certificates  not  pleaded  as  conclusive  evidence  of  estimates 
which  they  admit  were  not  made.  By  another  part  of  the  contract 
it  was  provided  that  pa^Tnents  should  be  made  to  Mr.  Randel  semi- 
monthly for  his  work,  according  to  these  certificates  and  estimates ;  if 
therefore  estimates  were  withheld,  it  was  a  wrong  to  Mr.  Randel, 
and  the  company  are  liable  to  him  for  all  the  injurious  consequences 
necessarily  resulting  from  their  not  inspecting  and  estimating  the 
work  according  to  the  terms  of  the  contract;  and  if  one  of  those  con- 
sequences was  that  Randel  was  not  paid  for  all  the  work  he  did  semi- 
monthly, the  defts.  are  liable  for  the  amount  of  that  work,  and  for 
the  non-payment  of  the  value  at  the  time  it  was  donei,  and  when  it 
ought  to  have  been  estimated,  and  certified,  and  paid. 

(4:ih,  5th  and  6th  counts.)  There  are  three  other  counts  assign- 
ing breaches  on  this  covenant  which  it  is  not  necessary  for  the  court 
particularly  to  explain;  as,  if  found  for  the  plff.,  any  damage  result- 
ing from  them  would  fall  also  within  the  breaches  already  considered ; 
and  if  found  for  the  defts.  they  would  not  diminish  the  amount  of 
that  damage.  The  particular  issues  on  these  counts,  as  distinct  from 
the  two  breaches  before  mentioned,  have  not  been  presented  in  the 
argument  as  essentially  varying  the  case ;  and  a  further  examination 
of  them  might  distract  the  attention  of  the  jury,  without  leading  to 
any  beneficial  result.  Indeed  the  plff  .'s  counsel  who  last  addressed  the 
jury  distinctly  abandoned  these  three  counts,  and  presented  no  claim 
for  damages  as  resulting  from  them.  The  jury  may  therefore  find 
for  the  defts.  on  the  4th,  5th  and  6th  counts. 

Fourth.  The  next  covenant  declared  on  is  what  has  been  called  the 
"  prevention  clause,"  which  is  a  contract  of  the  company,  that  in  case 
Randel,  from  their  default  in  any  particular,  should  be  prevented 
from  pursuing  the  due  and  best  mode  of  executing  his  contract,  or 
from  entering  upon  or  flooding  lands  for  that  purpose,  the  pecuniary 
damage  sustained  by  him  in  consequence  thereof  should  be  certified 
b)'  their  engineer  for  the  time  being,  and  that  on  his  certificate  they 
would  pay  Randel  such  reasonable  compensation  and  allowance  as 
should  be  fixed  by  the  certificate. 

The  plff.  has  assigned  five  breaches  of  this  covenant  in  different 
forms,  alledging,  in  substance,  that, he  was  prevented  by  the  default  of 
the  company  from  pursuing  the  due  and  best  mode  of  executing  his 
contract ;  that  he  was  prevented  from  entering  upon  lands  for  the 
purpose  of  executing  his  contract ;  that  he  was  prevented  from  flood- 
ing lands ;  that  the  company  disposed  of  his  contract  to  other  persons, 
and  thus  prevented  him  from  executing  it  in  the  due  and  best  manner ; 
that  he  sustained  great  pecuniary  damage  from  these  defaults  of  the 
company;  and  that  their  engineer  has  not  certified  the  damage, 
although  he  well  knew  the  premises  and  was  aware  of  the  extent  of 
the  damage.  To  all  of  these  breaches  the  defts.  have  pleaded  the 
'•'abandonment"  simply,  and  the  plff.  replied  the  "waiver,"  as  has 
before  been  explained  to  you  at  large.  The  issue,  therefore,  on  all 
the  breaches  of  the  prevetntion  clause  is,  whether  the  defts.  have 
waived  the  power  to  declare  the  contract  abandoned  on  Wright's 


■ 

I 


Eandel,  Jun.  vs.  Cues.  &  Del.  Canal  Company.  315 

certificates  of  the  30th  of  July,  1825.  If  the  jury  are  of  opinion  that 
the  waiver  has  not  been  made  out,  there  is  an  end,  of  course,  to  all 
claim  for  damages  on  this  prevention  covenant;  but  if  you  should 
think  otherwise,  you  will  then  give  the  pltt'.  such  amount  of  damage 
as  you  are  satisfied  by  the  evidence  he  has  sustained  by  reason  of  the 
acts  stated  in  these  breaches,  and  which  the  pleadings  admit.  We 
have  been  further  requested  by  the  plff.'s  counsel  to  charge  you  that 
these  pleadings  admit  the  amount  of  damage  stated  in  the  breaches  to 
have  resulted  from  these  defaults  of  the  company,  but  we  decline  the 
expression  of  such  an  opinion.  In  our  view  the  law  is  otherwise. 
The  plea  of  abandonment,  being  a  plea  of  confession  and  avoidance, 
necessarily  admits  all  the  material  and  traversable  facts  averred  in 
the  breach;  it  admits  the  prevention,  the  subsequent  disposition  of 
the  contract,  that  damage  to  Bandel  Avas  the  consequence,  and  that 
the  engineer  did  not  certify  the  damage;  but  it  admits  no  amount  of 
damage,  and  the  jury  must  resort  to  the  evidence  in  the  cause  for  the 
foundation  of  any  other  than  nominal  damages.  For  actual  damages, 
therefore,  and  the  amount  thereof,  we  refer  the  jury  to  the  proof,  to 
decide  according  to  their  best  judgment  on  all  the  facts  that  have  been 
laid  before  them.  There  is,  however,  one  matter  of  evidence  con- 
nected with  this  subject  that  requires  a  passing  remark.  The  plff. 
has  offered  some  testimony  to  show  that  the  possession  of  section  No. 
2,  which  he  alledges  would  have  been  useful  to  him  as  a  drain  for 
section  3,  was  withheld  from  him  by  tlie  default  of  the  company. 
It  appears  that  before  the  canal  was  commenced,  the  defts.  had  made 
a  contract  with  Daniel  Newbold,  the  owner  of  the  land  through 
which  section  2  ran,  for  the  purchase  of  that  land.  A  dispute  arose 
between  them  in  relation  to  their  contract,  which  was  finally  settled 
by  arbitration;  but,  whatever  may  have  been  the  merits  of  that  con- 
troversy, it  appears  that  the  company  did  not  get  actual  possession 
of  the  land  until  it  was  obtained  under  a  writ  of  habere  facias  posses- 
sionem, issued  out  of  the  supreme  court  of  this  county,  in  April  1825. 
The  jury  must  judge  whether  Mr.  Randel  suffered  damage,  or  was 
obstructed  in  the  prosecution  of  his  work  by  the  failure  of  the  com- 
pany to  give  him  earlier  possession  of  section  2,  and  remunerate  him 
by  such  amount  of  compensation  as  the  evidence  enables  them  to  as- 
certain. We  refer  to  this  matter  only  because  we  have  been  requested 
to  charge  that  the  covenant  of  Daniel  Xewbold  of  the  4th  August, 
1823,  did  not  entitle  the  defts.  to  possession  of  this  land,  and  we  think 
it  did  not.  It  was  a  covenant  to  convey  his  land  on  condition  that  the 
company  should  execute  and  deliver  to  him  an  obligation  under  their 
corporate  seal  for  the  payment  of  one  dollar  per  acre  for  the  land,  and 
also  on  the  condition  that  the  canal  should  pass  through  it.  At  all 
events,  the  issuing  of  the  writ  of  habere  facias  shows  that  they  did 
not  get  actual  possession  before  that  time,  which  they  were  bound  to 
do  if  such  possession  was  necessary  or  useful  to  Mr.  Eandel. 

Fifth.  The  remaining  clause  of  the  contract  for  an  alledged  viola- 
tion of  which  the  plff.  complains  is  a  covenant  on  the  part  of  the 
canal  companv  to  allow  him  fonr  years  from  the  date  of  his  contract 
to  complete  the  canal,  with  a  qualification,  which  you  understand, 
that  under  circumstances  they  might  in  a  particular  manner  put 
an  end  to  the  contract  at  an  earlier  day  for  negligence  on  his  part. 


316  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

The  breaches  assigned  on  this  covenant  are,  that  the  company  un- 
lawfully put  an  end  to  the  contract,  and  prevented  Mr.  Randel  from 
proceeding,  and  thus  deprived  him  of  the  time  which  by  the  contract 
he  was  to  be  allowed  for  executing  the  work.  The  plea  to  these 
breaches  is  the  "  abandonment,"  and  the  replication,  "  waiver."  The 
issue  therefore  is  the  same  as  explained  under  the!  last  head;  and 
the  question  whether  any  damage  is  to  be  assessed  on  this  issue  or 
not  depends,  in  the  first  instance,  on  the  decision  of  the  jury  on  the 
waiver.  If  the  jury  sustain  the  waiver,  the  breach  is  proved ;  that  is, 
it  establishes  the  fact  that  the  company  illegally  deprived  Mr.  Randel 
of  his  contract  and  stopt  his  work  contrary  to  their  covenant  to  allow 
him  four  years  to  comple^;e  the  canal.  The  question  will  then  be, 
what  damage  has  the  plff.  sustained  by  reason  of  this  act  of  the  com- 
pany? The  only  guide  that  the  court  can  give  you  on  this  subject  is 
the  legal  rule,  that  whatever  loss  or  damage  naturally  and  immedi- 
ately results  from  the  wrong  complained  of,  the  wrong-doer  is  bound 
to  compensate.  What  was  the  loss  which  Mr.  Randel  iiicurred  in 
consequence  of  being  illegally  deprived  of  his  contract?  He  lost  the 
ten  per  cent,  on  the  $224,291  51,  the  amount  of  work  done  by  him 
before  the  first  October,  1825,  or  such  other  amount  of  work  as  you 
may  be  satisfied  he  had  done  before  that  time ;  he  lost  any  profit  that 
the  jury  may  be  of  opinion  he  could  have  made  on  the  work  remain- 
ing to  be  done  after  the  first  of  October,  1825,  which  profit  must  be 
ascertained  by  estimating  the  cost  of  the  work  and  deducting  it  from 
the  sum  to  be  allowed  to  Randel  therefor  by  his  contract  with  the 
company ;  that  is,  by  the  revised  schedule  of  prices,  together  with  the 
ten  per  cent,  for  contingencies.  The  jury  should  add  this  ten  per 
cent,  to  the  revised  price,  and  compare  it  with  what  they  believe 
would  have  been  the  actual  cost  of  the  work;  and  the  result,  if  in 
favor  of  the  plff.  will  show  the  amount  of  profit  he  could  have  made 
on  the  work  remaining  to  be  done.  If,  on  the  other  hand,  the  jury 
are  of  opinion,  from  such  comparison  of  the  cost  and  price,  that  the 
plff.  had  he  been  permitted  to  proceed  in  his  work  would  not  have 
realized  from  it  any  profit,  the  damages  on  account  of  the  work 
remaining  to  be  done  will  be  merely  nominal.  These  are  specifica- 
tions which  the  court  feel  at  liberty  to  make ;  and  we  say  to  you, 
generally,  that  any  loss  fairly  resulting  to  Mr.  Randel  from  such 
illegal  dismission  should  be  considered  in  ascertaining  the  amount  of 
damages.  But  such  damage  must  be  the  immediate  and  natural  result 
of  the  wrong,  and  not  any  remote  or  fancied  injury  that  might  be 
referred  to  that  wrong  as  a  probable  cause. 

In  estimating  the  work  remaining  to  bo  done  after  the  first  of  Octo- 
ber, 1825,  the  jury  will  bear  in  mind  that  payment  for  this,  as  indeed 
for  all  the  work,  was  to  be  made  bv  the  cubic  yard;  and  if  the 
amount  of  excavation  was  increased  by  slips  from  the  regulated 
slopes  of  the  canal,  or  by  earth  pressed  up  in  the  chamber  of  the  ca- 
nal by  the  sinking  of  the  canal  banks,  the  contractor  must  have  been 
paid  for  the  removal  of  this  accumulated  earth,  as  for  all  other  exca- 
vation, by  the  cubic  yard. 

The  average  price  per  cubic  yard  of  the  whole  of  section  No.  5  is 
not  to  exceed  25  cents.  One  part  of  this  section  was  let  to  Dexter, 
and  the  residue  of  it  was  let  to  Randel.    Whatever  may  be  ascertain- 


Kandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  317 

ed  by  you,  on  a  proper  calculation,  to  be  fair  average  of  this  part 
of  the  section,  you  ought  to  allow  him.  You  have  seen  the  map  of 
this  canal;  you  have,  seen  how  this  part  of  section  5  is  defined  and 
protracted.  You  will  compare  its  greater  elevation,  or  rather,  per- 
haps its  greater  depth,  when  contrasted  with  the  residue  of  that  sec- 
tion. It  is  declared  by  the  contract,  after  making  a  graduation  of 
prices  in  propo^rtion  to  the  depth  of  cutting,  that  it  is  understood  that 
this  graduation  of  prices  is  made  expressly  to  conform  to  the  differ- 
ence in  labor,  and  to  be  so  estimated  when  done  as  that  the  whole 
excavation  of  this  section  shall  not  exceed  35  cents  per  cubic  yard  for 
the  whole  section;  not  for  that  part  only  included  in  the  plff.'s  con- 
tract, but  expressly  for  the  whole  section.  Whatever,  then,  may  be 
the  fair  average  price  of  this  part  of  section  5,  you  ought  to  allow  the 
plff.,  although  it  may  exceed  25  cents  per  cubic  yard  on  that  part  of 
the  section,  being  careful  at  the  same  time  not  to  average  the  whole 
section  higher  than  25  cents  per  cubic  yard.  We  think  any  other 
construction  of  the  contract  would  be  absurd.  The  parties  graduate 
the  prices  expressly  to  conform  to  the  difference  in  labor,  and  if  Ran- 
del  has  to  go  much  deeper  upon  his  part  of  section  5  than  is  necessa- 
ry on  the  part  not  let  to  him,  justice  and  the  spirit  and  terms  of  the 
contract  require  that  he  should  receive  a  greater  average  in  propor- 
tion to  the  difference  in  labor. 

There  remains,  gentlemen,  one  other  breach  on  this  covenant,  be- 
ing the  breach  assigned  in  the  seventh  count  of  the  declaration,  and 
upon  which  the  plff.  has,  as  you  have  been  informed,  obtained  a  judg- 
ment and  on  order  in  the  nature  of  a  writ  of  inquiry  for  you  to  assess 
the  damage.  In  relation  to  this  part  of  the  case,  the  matter  of  aban- 
donment and  waiver  is  not  a  subject  of  consideration.  The  effect  of 
a  judgment  by  default,  or  on  demurrer,  is  to  admit  that  the  plff.  has 
a  cause  of  action;  it  establishes  his  right  to  recover:  and  where  the 
contract  declared  on  is  for  a  sum  certain,  as  in  debt,  and  the  declara- 
tion either  ascertains  the  amount  or  sets  out  an  instrument  from 
which  the  amount  can  be  certainly  ascertained  by  calculation,  the 
judgment  is  also  conclusive  as  to  the  amount.  Where  the  matter 
sued  for  sounds  in  damages,  or  is  in  its  nature  uncertain,  the  judg- 
ment, though  it  establishes  no  amount  of  damages,  fixes  the  right  to 
recoiver.  In  either  case  no  probf  need  be  off€*red,  or  would  be 
allowed,  of  the  cause  of  action,  nor  will  the  deft,  be  permitted 
to  set  up  any  defence  denying  the  cause  of  action.  Thus  in  an 
action  on  a  contract  the  deft,  will  not  be  allowed  even  in  miti- 
gation of  damages,  to  give  evidence  of  fraud,  or  of  any  other 
matter  which  would  render  the  contract  void.  (East  India 
Company  vs.  Glover,  Strange,  612.  1  Bos.  &  Pul.  363.  2  Saund. 
PI.  &  Ev.  103.  2  Strange  1149.  Bevis  vs.  Lindsell.  Doug.  315, 
n.  2.)  The  judgment  on  the  seventh  count  in  this  case  admits  that 
the  canal  company,  contrary  to  their  covenant,  did  takel  the  time 
within  which  it  should  be  incumbent  on  Mr.  Eandel  to  perform  his 
contract  to  be  less  than  four  years  from  the  date  of  that  contract.  Is 
it  competent  then  for  the  dgfts,  to  set  up,  contrary  to  this  admission, 
that  they  legally  deprived  him  of  his  contract  within  the  four  years, 
and  thus  did  not  violate  their  contract,  which  is,  in  effect,  the  plea  of 
abandonment?    According  to  principles  before  stated  and  well  esta- 


318  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

blished,  it  is  not  competent  for  thein  to  make  such  a  defejice.  And 
the  matter  of  abandonment  and  waiver  being  out  of  the  way  in  rela- 
tion to  this  count,  whatever  may  be  your  opinion  on  tliat  subject,  it 
will  be  your  duty  to  assess,  on  this  writ  of  inquiry,  such  amount  of 
damages  as  the  proof  satisfies  you  the  plff.  has  sustained  by  reason  of 
this  breach  of  covenant,  whether  he  did  in  fact  unreasonably  neglect 
the  work  or  not.  The  measure  of  those  damages,  and  the  rule  which 
is  to  govern  you  in  assessing  theon,  are  the  same  as  has  been  already 
stated  to  you  in  explaining  the  last  breach  on  this  covenant.  The 
plff.  will  also  be  entitled  to  damages,  by  way  of  increase,  for  the  de- 
tention of  any  sums  that  the  jury  may  be  of  opinion  he  ought  to  have 
received  from  the'defts.,  either  for  work  done  or  injury  and  loss  sus- 
tained; and  a  suitable  rule  for  increasing  such  damages  would  be  the 
rate  of  interest  from  the  time  such  sums  were  due  and  ought  to  have 
been  paid.  The  jury  will  exercise  a  sound  discretion  on  this  subject. 
"  In  the  course  of  the  argument  of  this  cause  the  rules  and  princi- 
ples by  which  this  contract  is  to  be  construed,  have  been  stated  so 
variously  that  it  is  difficult  for  us  to  know,  as  to  some  of  the  points, 
upon  what  grounds  the  defence  is  intended  to  rest.  The  counsel  who 
opened  this  case,  on  the  part  of  the  defendants,  took  up  the  position 
that  the  plff.  was  dismissed  from  the  contract,  not  because  he  had  not 
a  sufficient  force  on  the  work  to  complete  it  within  the  time  limited 
by  his  contract,  but  because  he  would  not  put  this  force  at  such  place 
as  the  company  directed;  thus  contending  that  the  company  had  a 
right  to  order  the  plff.  to  work  where  and  as  they  should  direct. 
But  in  the  argument  to  you  upon  the  evidence  it  has  been  contended 
that  under  the  contract  Randel  had  the  right  to  execute  the  work  as 
he  saw  best;  that  any  orders  given  him  by  the  company  to  execute 
the  work  according  to  their  directions  were  illegal,  not  binding  on 
Randel,  and  if  he  obeyed  such  orders  it  was  a  thing  assented  to  by 
himself;  that  if  any  damage  or  loss  was  sustained  by  him  in  conse- 
quence of  those  orders  it  was  his  own  folly;  and  that  in  this  action, 
which  is  founded  on  the  contract,  he  could  not  recover  any  thing  for 
the  injury  thus  sustained.  Another  of  the  defendant's  counsel  repu- 
diates this  construction ;  and  contends  that  the  cotemporaneous  expo- 
sition given  by  the  parties  to  this  contract,  as  far  as  it  has  been  exe- 
cuted, is  that  which  binds  them ;  and  whether  it  be  the  true  or  false 
construction,  as  it  was  communis  error  both  are  bound  by  it.  In 
this  diversity  of  construction  it  is  difficult  for  us  to  present  to  you 
the  precise  view  taken  by  both  sides  of  this  contract.  All  you  and 
the  court  can  do,  however,  is  to  look  to  the  contract  itself,  and  ga- 
ther from  that  what  its  stipulations  are,  and  when  these  are  ascer- 
tained they  must  govern  us.  The  plff.  undertook  to  perform  a  great 
work  for  the  defendants.  He  bad  the  right  to  perform,  generally, 
this  work  as  might  seem  best  to  him,  without  any  control  to  be  exer- 
cised, over  him,  either  by  the  company  or  their  engineers ;  he  had 
the  right  to  begin  the  work  where  he  pleased  and  to  prosecute  the 
work  as  he  pleased,  (with  the  exception  of  the  third  section)  so  that 
he  did  not  unreasonably  neglect  to  prosecute  it;  and  the  company 
stipulated  that  if  in  any  particular  by  their  default  he  should  be  pre- 
vented from  using  the  due  and  best  mode  of  prosecuting  his  contract, 
their  engineer  should  certify  the  damage  and  they  would  pay  it. 


Undel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

This  precludes  all  idea  of  their  right  to  interfere  with  him  in  the 
progress  of  the  work,  ^ot  a  word  in  the  contract  conveys  such  an 
idea;  and  he  had  a  right  to  place  his  force  on  any  part  of  the  canal 
which  he  had  contracted  to  make,  and  the  company  had  no  right  to 
order  him  to  do  otherwise.  They  could  not  say  to  him  put  such  a 
force  here  or  there;  and  if  they  did  he  was  not  bound  to  obey.  It 
is  true  that  if  the  pllf.  volunianly  adopted  and  executed  these  or- 
ders he  has  no  right  to  complain,  nor  do  they  aiford  any  ground  of 
damage. 

We  have  excepted  the  third  section  from  these  general  remarks, 
and  it  becomes  necessary  tliat  we  should  show  you  m  what  respects 
his  right  to  work  as  he  pleased  on  this  section  ditfered  from  his  rights 
when  working  upon  other  parts  of  the  canal. 

These  are  the  provisions  of  the  contract  in  respect  to  this  section : 
*'  Price  per  cubic  yard  twelve  and  a  half  cents.  For  all  earth  exca- 
vated and  placed  in  bank  as  required,  to  within  two  feet  of  bottom, 
eight  cents,  and  when  any  half  mile  is  completed  the  balance  is  to 
be  paid.  The  contractor  shall  at  all  times  excavate  to  the  bottom, 
if  in  the  opinion  of  the  committee  of  works  it  can  be  done  with  good 
economy."  This  expression,  shall  at  all  times  go  to  bottom  when 
in  the  opinion  of  the  committee  of  works  it  can  be  done  with  good 
economy,  does  not  mean  that  the  committee  of  works  shall  have 
power  to  compel  Eandel  to  complete  this  section  in  a  day  or  a  week 
or  any  limited  time  short  of  the  four  years,  which  the  contract  gave 
him  to  complete  it  in;  nor  did  it  give  them  the  power  to  direct  what 
number  of  men  he  should  employ  upon  it,  nor  with  what  machines 
or  means  he  should  execute  the  work,  nor  at  what  times  or  periods 
he  should  work  upon  it.  These  were  all  discretionary  with  the  plff. 
But  as  we  understand  this  clause  it  means  this:  that  w^henever  Ran- 
del  chose  to  work  on  this  section  of  the  canal,  the  committee  of 
w'ork,  if  they  deemed  that  it  could  be  done  with  good  economy, 
might  direct  him  to  go  to  bottom.  But  no  order  of  this  description 
accompanied  by  a  resolution  that  he  should  receive  no  pay  till  he  did 
go  to  bottom  was  binding  on  him;  for  the  contract  expressly  stipu- 
lates that  when  he  shall  have  gone  to  within  two  feet  of  bottom  he 
shall  receive  eight  cents  per  cubic  yard,  and  when  a  half  mile  shall 
be  excavated  to  bottom  the  remaining  four  and  a  half  cents  is  to  be 
paid.  Perhaps  when  the  parties  made  this  contract  they  had  it  in 
contemplation  that  when  any  half  mile  shotild  be  excavated  to  with- 
in two  feet  of  bottom  then  the  committee  of  works  might  direct  him 
to  finish  that  half  mile,  without  proceeding  further  until  that  was 
accomplished.  But  they  had  no  right  to  direct  what  force  he  should 
employ  upon  it. 

We  have  been  required  by  both  sides  to  give  you  our  opinion  on 
this  clause  of  the  contract.  "  Both  banks  (that  is  the  towing  path 
and  the  bank  on  the  opposite  side  of  the  canal)  shall  be  constructed 
of  the  best  earth  which  the  adjoining  excavation  will  give,  in  a 
workman-like  manner."  It  is  contended  on  the  one  side  that  Ean- 
del was  not  obliged  by  his  contract  to  go  beyond  the  adjoining  exca- 
vation for  the  material  of  which  the  banks  were  to  be  constructed; 
the  adjoining  excavation  being  the  canal  on  the  one  side  and  the  back 
drains  upon  the  other.     On  the  other  hand  it  is  contended  that  this 


320  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

comes  within  the  scope  and  meaning  of  the  clause  in  relation  to  alte- 
rations and  deviations.  'J'hat  clause  provides  that  during  the  pro- 
gress of  the  work  the  plft.  will  at  all  times  conform  to  such  devia- 
tions from  the  present  line  of  the  canal,  and  to  such  alterations  in 
the  form,  slope,  and  dimensions  of  the  banks,  towing  paths,  or  any 
other  of  tlie  said  works  as  the  company  or  their  engineer  shall  direct. 
These  other  works  were  the  harbor,  back-drains,  &c.  In  the  form, 
slope  or  dimensions  of  any  of  these  alterations  might  be  directed,  and 
the  plff.  was  bound  to  confonu;  and  danuiges  for  any  such  deviations 
or  alterations  cannot  be  recovered  in  this  action.  But  it  is  no  where 
stipulated  that  the  material  of- which  the  banks  or  other  works  were 
to  be  constructed  may  be  changed.  The  plff.  had  a  right  to  use  the 
mud  from  the  adjoining  excavation  to  construct  the  banks,  and  if  he 
made  them  in  a  workmanlike  manner,  and  as  well  as  the  material 
provided  would  allow,  he  did  every  thing  that  his  contract  required 
of  him.'' 

We  have  been  further  requested  by  the  defts.  counsel  to  say  to 
you,  as  we  do,  that  the  stipulation  entered  into  in  the  sub-contracts 
of  the  plff.  with  his  sub-contractors  by  which  he  directed  them  to 
obey  the  orders  of  the  engineer-in-chief  of  the  defts.  did  not  impose 
on  the  said  engineer  a  duty  to  give  orders  to  the  sub-contractors  to 
go  to  bottom  on  section  three,  so  as  to  constitute  a  default  of  defts. 
by  reason  of  the  omission  to  give  such  orders;  and  we  add,  that, 
according  to  our  construction  of  the  contract,  the  omission  to  order 
either  Randel  or  his  sub-contractors  to  go  to  bottom  on  section  three, 
was  not  a  default  of  the  company  or  of  their  engineer,  nor  can  it  be 
a  ground  of  damage ;  for  Randel  had  the  right  to  go  to  bottom,  and 
to  order  his  sub-contractors  to  go  to  bottom,  if  he  chose  so  to  do, 
without  any  orders  from  the  company. 

We  have  now,  gentlemen  of  the  jury,  gone  through  those  promis- 
nent  and  important  points  in  this  cause  that  particularly  required 
from  us  a  notice.  The  case  is  one  of  such  magnitude,  and  embraces 
so  many  topics  of  consideration  and  remark,  that  it  has  been  impos- 
sible for  us  to  take  any  other  than  a  very  general  view  of  it.  Our 
only  object  has  been  to  direct  your  attention  to  the  proper  points  of 
inquiry;  and  to  give  you  certain  general  and  comprehensive  rules  as 
a  guide  in  the  investigation  which  you  will  have  to  make.  The  ^ase 
now  rests  with  you.  Examine  it,  gentlemen.  Investigate  it  with 
that  patience  which  has  hitherto,  in  the  course  of  this  tedious  trial, 
so  laudably  distinguished  you ;  and  for  which  you  are  entitled  to  the 
thanks  of  the  parties,  the  court  and  the  public.  Persevere  in  this 
laudable  spirit;  go  to  bottom;  and  let  this  cause,  distinguished  as  it 
has  been  in  many  of  its  features,  above  all  others  heretofore  tried  in 
this  State,  be  still  more  signally  distinguished  by  the  propriety  and 
justice  of  its  determination. 

The  jury  retired  on  Tuesday  evening,  January  21st,  and  returned 
into  court  the  following  Saturday,  at  noon,  with  the  following  ver- 
dict: 

And  now  to  wit,  this  ninth  day  of  December,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-three,  thirty  jurors 
having  been,  by  the  sheriff  of  this  county,  duly  summoned,  returned 


I 


Kandel,  Jun.  vs.  Ches.  &  Del.  Canal  Company.  321 

and  impannelled,  out  of  which  number  a  jury,  to  wit:  John  Clark, 
James  Roberts,  Baymon  Deakyne,  Thomas  Morrison,  George  B. 
Meteer,  Israel  Garretson,  Thomas  Robinson,  Jacob  Whiteman, 
John  W.  Evans,  Arthur  J.  Whitely,  James  C.  Mansfield  and  George 
Foote,  being  duly  drawn,  who,  after  all  causes  of  challenge  allowed 
did  appear  at  the  bar,  and  were  duly  sworn  and  affirmed,  well  and 
truly  to  inquire  and  true  inquisition  make  and  return  of  the  damages 
and  costs  sustained  by  the  plaintiff  on  occasion  of  the  breach  of  cove- 
nant in  the  seventh  count  of  the  declaration  in  the  said  cause  men- 
tioned and  set  forth,  and  well  and  truly  to  try  the  issues  joined  in 
this  cause  wherein  the  said  John  Randel,  junior,  is  plaintiff,  and  the 
Chesapeake  and  Delaware  Canal  Company  are  defendants,  and  to 
speak  the  truth  of  and  upon  the  premises,  and  a  true  verdict  render 
according  to  the  evidence.  And  the  said  cause  and  the  inquiry  afore- 
said, and  the  trial  of  the  issues  aforesaid  progressing  from  day  to  day, 
afterwards,  to  wit:  on  the  twenty-fifth  day  of  January,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  thirty-four,  the  jurors 
aforesaid,  upon  their  oaths  and  affirmations,  respectively,  do  return 
an  inquisition,  under  their  hands  and  seals,  in  the  words  following, 
to  wit: 

In  the  matter  of  the  seventh  count  of  the  plaintiff's  declaration,  as 
amended  in  the  above  cause,  and  the  judgment  for  the  said  plaintiff 
thereon. 

Inquisition  made,  indented,  taken  and  returned  in  open  court  of 
the  Superior  Court  of  the  State  of  Delaware,  held  at  Newcastle  in 
and  for  the  county  of  Newcastle,  on  the  twenty-fifth  day  of  January 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-four. 
Prout  the  said  declaration  the  proceedings  and  the  judgment  thereon. 

Whereas,  in  and  by  the  said  judgment,  it  appears  that  the  demur- 
rer of  the  said  the  Chesapeake  and  Delaware  Canal  Company  to  the 
seventh  count  of  the  said  declaration,  being  the  fourth  additional 
count  of  the  said  declaration  contained,  confesses  the  said  contract  or 
articles  of  agreement  so  set  out  on  oyer  as  aforesaid,  and  the  fact  that 
the  said  the  Chesapeake  and  Delaware  Canal  Company  did  take  the 
time  within  which  it  should  be  incumbent  on  the  said  John  Randel, 
junior,  fully  to  perform  and  complete  his  contract  to  be  less  than  four 
years,  from  and  after  the  first  day  of  l\Iay  next  ensuing  the  date  of 
the  said  articles  of  agreement,  and  the  matters  and  things  aforesaid 
being  also  in  full  proof  before  this  inquest:  And  whereas,  hereto- 
fore, to  wit :  on  the  twenty-first  day  of  November,  in  the  year  of 
our  Lord  one  thousand  ieight  hundred  and  thirty-three,  the  justices 
who  gave  the  interlocutory  judgment  on  the  said  seventh  count  of 
the  said  declaration  did  (at  the  motion  of  the  plaintiff  in  the  action 
wherein  the  said  judgment  was  given)  make  their  order  in  the  nature 
of  a  writ  of  inquiry  to  charge  the  jury  attending  at  this  court  being 
the  next  court  after  the  said  judgment  was  given,  to  inquire  of  the 
damages  and  costs  sustained  by  the  plaintiff  by  reason  of  the  breach 
of  covenant  in  the  said  count  mentioned:  And  whereas,  at  this  court 
afterwards,  to  wit:  on  the  ninth  day  of  December,  in  the  year  last 
aforesaid,  came  a  jury  to  the  bar,  to  wit :  John  Clark,  James  Roberts, 


322  Randel,  Jun.  vs.  Ches.  &  Del.  Canal  Company. 

Baymon  Deakyne,  Thomas  Morrison,  George  B.  Meteer,  Israel 
Garrctson,  Thomas  Robinson,  Jacob  Whiteman,  John  W.  Evans, 
Arthur  J.  Whitely,  James  C.  Mansfield  and  George  Foote,  discreet, 
judicious  and  lawful  men,  being  a  jury  attending  at  the  next  court 
after  said  interlocutory  judgment  was  given,  who  were  duly  sworn 
and  aflBrmed  as  the  law  requires,  well  and  truly  to  inquire  and  true 
inquisition  make  and  return  of  the  damages  and  costs  sustained  by 
the  plaintiff  on  occasion  of  the  breach  of  covenant  in  the  said  seventh 
count  of  the  declaration  in  the  said  cause  mentioned  and  set  forth, 
and  the  said  jury  being  charged  to  inquire  of  the  said  damages  and 
costs,  and  the  said  inquiry  being  made  and  evidence  given  in  open 
court,  and  the  inquest  having  considered  thereof  until  this  day,  they 
do  now  forthwith  return  this  their  inquisition  under  their  hands  and 
seals,  and  they  the  said  jurors  do  find  upon  their  oaths  and  affirma- 
tions, respectively,  that  John  Randel,  junior,  has  sustained  damages 
by  reason  of  the  premises  and  on  occasion  of  the  said  breach  of  cove- 
nant in  the  sum  of  two  hundred  and  four  thousand  seven-  hundred 
and  sixteen  dollars  and  thirty-six  cents,  lawful  money  of  the  United 
States  of  America,  and  they  also  find  that  the  said  plaintiff  has  sus- 
tained costs  by  reason  and  on  occasion  of  the  premises  in  the  sum  of 
five  hundred  dollars  of  like  lawful  money. 

In  witness  whereof,  we  have  hereunto,  respectively,  set  our  hands 
and  seals  the  day  and  year  aforesaid. 

And  the  jurors  aforesaid,  on  the  day  and  year  last  aforesaid,  upon 
their  oaths  and  affirmations,  respectively,  do  further  say,  that  they 
find  for  the  plaintiff  and  assess  the  damages  sustained  by  him  on  oc- 
casion of  the  first  and  second  breaches  of  covenant  in  the  second 
count  of  the  declaration  mentioned  and  set  forth,  at  the  sum  of  thir- 
teen thousand  dollars,  lawful  money  of  the  United  States  of  Ame- 
rica ;  on  occasion  of  the  third,  fourth  and  fifth  breaches  in  the  second 
count,  and  the  fourth  and  eighth  breaches  in  the  third  count  of  the 
said  declaration  mentioned,  at  the  sum  of  four  thousand  three  hun- 
dred and  fifty-eight  dollars  and  seventy-nine  cents,  of  like  lawful 
money;  and  on  occasion  of  the  fifth  breach  in  the  third  count  of  the 
declaration  mentioned  at  the  sum  of  four  thousand  three- hundred  and 
ten  dollars  and  sixty-nine  cents,  of  like  lawful  money,  making  in  all, 
besides  the  damages  assessed  in  the  inquisition  aforesaid,  the  sum  of 
twenty-one  thousand  six  hundred  and  sixty-nine  dollars  and  forty- 
eight  cents,  with  six  cents  costs  besides  the  costs  expended;  and  as 
to  the  other  breaches  of  covenant  in  the  said  declaration  mentioned, 
the  jurors  aforesaid  find  for  the  defendants. 

Judgment  nisi  at  fifty-five  minutes  past  one  o'clock,  P.  M. 

J.  M.  Clayton,  Rogers,  Read,  jr.  and  Ingersoll  for  plaintiff. 
J.  A.  Bayard,  Frame  and  Jones  for  defendants. 


SUPERIOR  COURT, 

SPRING  SESSIONS, 

1834. 


TUKPIN,  JACOB  AND  CHAELES  WEIGHT  vs.  WILLIAM  N. 
POLK,  adm'r.  d.  b.  n.  of  WILLIAM  EICHAEDS,  deceased. 

A  statement  in  writing  made  by  a  person,  though  not  on  oath,  admitted  to 
contradict  his  deposition. 

Case.  Pleas ;  non  assumpsit ;  payment  and  discount,  and  act  limi- 
tations. 

This  was  an  action  for  goods  sold  and  delivered,  money  paid  for 
the  use  of  deft.,  and  for  the  non-performance  of  a  contract  for  the 
delivery  of  a  quantity  of  bark.  The  declaration  contained  six  counts; 
the  first  three  on  the  following  contract:  "5  May,  1831.  Eeceived 
of  T.  J.  &  C.  Wright  $1,  in  part  payment  of  fifty  cords  of  Spanish 
bark  at  $9  25  per  cord_,  $80,  to  be  paid  in  goods,  and  the  balance  in 
money  on  delivery."  The  fourth  count  was  a  special  one  for  money 
paid  the  Farmers'  Bank  by  plft's.  for  the  use  of  deft.;  and  the  other 
two  were  general  for  goods  sold  and  money  paid,  &c. 

The  plft's.  were  drawers  of  a  promissory  note  for  $350,  dated  10 
May,  1831,  in  favor  of  Eichards,  which  was  endorsed  by  him  and 
negotiated  at  the  Farmers'  Bank,  and  the  money  paid  to  him.  This 
note  was  paid  on  20  September,  1831,  by  the  drawers. 

The  plffs.  offered  in  evidence  an  acknowledgment  under  seal,  by 
Eichards,  that  the  note  was  discounted  for  his  use  and  promising  to 
pay  the  discount.  It  was  objected  to;  because,  being  under  seal,  it 
changed  the  character  of  the  transaction  and  of  the  remedy.  The 
court  admitted  it  saying  that  no  action  could  be  framed  upon  it  ex- 
cept for  the  discount. 

Plffs.  also  gave  in  evidence  a  receipt  dated  May  21,  1831,  for  $371, 
and  signed  by  Eichards,  on  account  of  bark  contract.  They  claimed, 
therefore,  damages  for  the  non-performance  of  the  contract  to  deliver 
the  bark;  repayment  of  this  sum  of  $371,  paid  in  advance  on  account 
of  the  bark;  aad  also  the  $350,  the  amount  of  the  note  discounted  by 
the  bank  for  deft's.  use,  and  paid  by  plffs.  at  maturity.  The  defts. 
contended  that  the  receipt  and  note  referred  to  each  other  and  were 
all  one  transaction;  that  the  $371,  included  a  repayment  of  the  note 
discounted  in  bank.  This  was  the  principal  matter  in  dispute,  and  it 
was  very  much  contested  before  the  Jury.  On  the  subject  of  dam- 
ages for  the  non-delivery  of  the  bark,  plffs.  offered  the  deposition  of 
Samuel  Xeall  a  commission  merchant  in  Philadelphia,  to  prove  the 
price  of  bark  there  at  the  time  stated.  It  was  objected  to  and  ad- 
mitted.     The  jury  can  estimate  the  value  of  the  article  at  Seaford 


324  State  vs.  admrs.  of  Winoate  Cannon,  dec'd. 

from  the  price  at  Philadelphia  or  other  usual  market.  The  measure 
of  damages  for  non-delivery  of  goods  is  the  difference  between  the 
contract  price  and  the  price  at  the  time  in  the  market. 

The  deft,  offered  in  evidence  a  statement  made  by  Samuel  Neall, 
of  bark  sold  by  him  in  September,  1831.  It  was  signed  by  him  and 
his  signature  proved.  Objected  to,  as  not  being  upon  oath;  but  the 
court  admitted  it  on  the  ground  that  the  previous  declarations  of  a 
witness  are  always  admitted  to  contradict  his  testimony. 

The  plfifs.  had  a  verdict  and  judgment  for  damages,  $887  21. 

Cullen  and  Frame  for  plaintiffs. 

Rodney  and  Rohinson  for  defendant. 


THE  STATE  for  the  use  of  DAVID  CANNON  vs.  CLEMENT 
LAYTON  and  SALLY,  his  wife,  late  SALLY  CANNON,  admin- 
istratrix of  WINGATE  CANNON,  deceased. 

A  natural  guardian  account  no  evidence.    The  mother  allowed  for  maintenance 
of  her  child  out  of  his  distributive  share  of  his  father's  estate. 

Summons  debt.  Pleas,  performance;  payment;  set-oflf;  plene  ad- 
ministravit,  and  the  act  of  limitations.     Replication,  infancy. 

This  was  an  action  on  an  administration  bond  against  a  surety  for 
the  distributive  balance  of  David  Cannon  in  the  estate  of  his  father, 
William  N.  Cannon.  The  plff.  was  entitled  to  one-third  of  two- 
thirds  of  $306  47,  or  about  $34  05  at  two  years  old. 

The  defts.  offered  in  evidence  an  account  passed  before  the  register 
of  this  county  by  Sally  Cannon,  the  mother  and  natural  guardian  of 
the  plff.,  for  necessary  food  and  clothing  furnished  him  during  his 
infancy.      Objected  to. 

Wootien.  The  register  had  no  authority  to  pass  such  an  account. 
The  minor  had  no  power  to  except  to  it.  If  it  had  been  a  regular 
guardian  account  the  minor  might  have  excepted,  and  according  to 
the  settled  rule  of  law  the  guardian  would  not  have  been  allowed  to 
any  greater  extent  than  the  income.  This  paper  is  nothing  more 
than  a  statement  of  the  mother,  who  is  a  party  to  this  cause. 

The  Court  said  the  acco\int  was  not  evidence  per  se,  as  it  was  passed 
without  authority;  but  they  would  permit  the  defts.  to  prove  the  facts 
for  the  consideration  of  the  jury.  William  S.  Cannon  left  a  widow 
in  moderate  circumstances,  and  six  children,  the  plff.  being  but  two 
years  old.  If  his  mother  maintained  and  kept  him  tfntil  he  was  old 
enough  to  be  put  out  for  his  victuals  and  clothes,  the  jury  ought  to 
make  her  a  reasonable  allowance  out  of  what  was  coming  to  him  from 
his  father.  If  it  were  otherwise,  what  would  be  the  condition  of 
children  left  in  similar  circumstances.  They  must  go  to  the  poor 
house;  and  the  trustees  could  recover  for  their  maintenance.  The 
old  orphans'  court  would  not  allow  the  guardian  to  exceed  the  income 
after  7  years:  but  under  that  age  it  always  made  a  reasonable  allow- 
ance for  board  and  clothing.  Verdict  for  defts. 

Wootten  for  plaintiff. 

Layton  for  defendants. 


Emory  vs.  Collings.  325 

THE  STATE  for   the  use  of   JOHN  M.    KILLEN   and   wife   vs. 
PETER  L.  COOPER,  Executor  of  GEORGE  CARTER,  deceased. 

Infancy  must  be  specially  replied  to  a  plea  of  the  statute  of  limitations. 

Debt  on  an  administration  bond.  Narr  suggesting  breaches. 
I'ieas  —  payment,  non  est  factum,  plene  adrainistravit  and  act  of  lim- 
itations. 

To  repel  the  plea  of  the  statute  of  limitations  the  plff.  was  about  to 
prove  the  infancy  of  Mrs.  Killen;  but  it  was  objected  to,  and 

The  court  stopt  him.  There  is  no  replication  of  infancy  to  the 
plea  of  the  statute,  and  unless  infancy  be  specially  replied  it  cannot 
be  relied  on  or  proved  at  the  trial. 

The  plff.  suffered  a  nonsuit. 

Frame  for  plaintiff. 

Bates  and  Huffington  for  defendant. 


CHARLES  C.  EMORY  vs.  ROBERT  COLLINGS. 

Trespass  lies  for  throwing  from  the  public  road  dead  animals  into  plaintiff's 

well. 
In  trespass  the  locus  in  quo  must  be  proved  to  be  in  the  hundred  laid. 
The  declarations  of  the  deft,  at  the  time  are  evidence  to  show  the    quo    animo, 

and  admissible  as  a  part  of  the  res  gesta. 
The  question  of  jurisdiction  of  this  state  over  the  bay  and  river  Delaware 

considered. 

Trespass  quare  dausum  f regit  "  and  threw  divers  dead  geese  into 
the  well  of  said  plff.  and  choked  and  filled  up  the  same,  and  destroyed 
the  water  thereof,  and  prevented  the  plff.  from  having  the  use  and 
benefit  thereof  in  as  ample  manner,"  &c.  &c.  The  locus  in  quo  was 
stated  to  be  a  certain  close  in  Dover  hundred,  Kent  county. 

The  proof  was,  that  the  deft,  stood  in  the  public  road  and  threw 
the  geese  (which  were  his  own  geese  and  had  been  shot  by  plff.  for 
trespassing)  over  into  the  plff.'s  well.     Whereupon 

Frame,  for  deft,  moved  a  nonsuit. 

First.  Because  there  was  no  proof  of  an  entry  on  the  plff.'s  close, 
and  the  action  should  have  been  in  case,  as  case  for  erecting  water 
spouts  and  throwing  the  water  over  on  another's  premises. 

Second.  Because  there  was  no  proof  that  the  trespass  was  commit- 
ted in  Dover  hundred,  as  laid  in  the  narr ;  nor  even  proof  that  it  was 
committed  within  the  county.     /2  Saund.  PI.  £  Ev.  855.J 

But  on  looking  into  the  authorities  he  gave  up  the  first  point  as  not 
tenable,  and 

The  court  ordered  a  nonsuit  on  the  other  point,     (a) 

Judgment  of  nonsuit. 

Bates  and  Ridgely  for  plaintiff. 

Frame  for  defendant. 

(a)  In  a  subsequent  case  the  locus  in  quo  was  laid  in  "  Sussex  county," 
and  proved  to  have  been  at  Lewis  Town.  The  court  said  they  would  offi- 
cially take  notice  that  Lewis  Town  was  in  Sussex  county.  A  more  im- 
portant and  difficult  question  has  arisen  as  to  the  limits  of  Sussex 
county,  or  the  extent  of  the  state's  jurisdiction  over  the  bay  and  river 
Delaware.  It  was  considered  by  the  late  court  of  oyer  and  terminer,  in 
the  case  of  the  State  vs.  Morris,  which  was  an  indictment  for  the  mur- 
der of  the  captain  of  a  brig  lying  off  Lewis  Town,  near  the  breakwater. 


326  Emoby  vs.  Collinos. 

The  case  was  renewed,  in  the  same  form  of  action,  and  came  on 
for  trial  at  the  April  term,  1835. 

The  deft,  offered  to  prove  that  at  the  time  he  threw  the  geese  in 
the  well  he  was  very  much  excited;  that  it  was  not  done  from  pre- 

and  within  the  pitch  of  the  capes.  In  the  charge  delivered  to  the  jury 
on  that  occasion,  the  court  expressed  the  following  opinion. 

Harrington,  chief  justice: 

"  The  question  of  jurisdiction  in  this  cause  has  excited  the  serious 
attention  and  consideration  of  the  court.  It  is  in  some  respects  a  novel 
question,  involving  facts  in  relation  to  territorial  limits  heretofore  in 
some  degree  uncertain  and  not  easily  defined  with  precise  accuracy.  The 
exact  line  of  demarcation  between  the  high  seas  and  the  bay  of  Delaware 
which  distinguishes  between  the  jurisdiction  of  the  United  States  and 
that  of  a  particular  state  is  necessarily  a  subject  of  doubtful  locality; 
but  the  precise  line  of  division  between  the  states  of  New  Jersey  and 
Delaware  having  never  been  determined  by  any  conventional  arrange- 
ment between  the  states  or  the  final  adjudication  of  a  court  of  competent 
authority  is  still  more  uncertain  and  doubtful.  It  may  not  be  necessary 
for  the  court,  on  this  occasion,  to  determine  the  full  extent  of  this  state's 
jurisdiction  over  the  Delaware  bay  so  as  precisely  to  locate  its  eastern 
boundary ;  but  it  will  be  necessary  for  us  to  inquire  whether  the  state  has 
jurisdiction  over  that  part  of  the  bay  which  was  the  scene  of  this  al- 
ledged  murder. 

The  courts  of  the  United  States  have  jurisdiction  of  offences  of  this 
nature  committed  "  upon  the  high  seas,  or  in  any  arm  of  the  sea,  or  in 
any  river,  haven,  creek,  basin,  or  bay,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States  and  out  of  the  jurisdiction  of  any  par- 
ticular state."  They  have  also  a  specially  delegated  jurisdiction  over  a 
particular  point  near  the  mouth  of  the  Delaware  bay  by  virtue  of  the  ces- 
sion of  this  state  of  "  so  much  of  the  shore,  bed  and  waters  of  the  Dela- 
ware bay  as  are  necessary  for  the  erection  of  a  breakwater  or  other  har- 
bor, and  for  the  construction  of  such  defences  as  may  be  thought  proper 
at. or  near  the  mouth  of  said  bay."  The  term  "  high  seas,"  as  used  in  the 
act  of  congress,  means,  in  its  ordinary  sense,  the  open  ocean,  as  distin- 
guished from  a  "  river,  haven,  basin,  or  bay."  Upon  this  clause,  there- 
fore, the  courts  of  the  United  States  have  not  jurisdiction  over  an  offence 
comnMtted  in  the  Delaware  bay,  within  the  pitch  of  the  capes.  But  the 
act  goes  on  further  to  extend  the  jurisdiction  of  these  courts  over  offences 
committed  "  in  any  arm  of  the  sea,  or  in  any  river,  haven,  creek,  basin, 
or  bay,  within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  and  out  of  the  jurisdiction  of  any  particular  state."  The  term 
"  out  of  the  jurisdiction  of  any  particular  state  "  means  out  of  any  one 
of  the  United  States;  and  the  intention  of  congress  was  to  confine  the 
United  States'  courts  to  offences  committed  in  bays,  rivers,  or  arms  of  the 
sea  not  embraced  within  the  territorial  or  jurisdictional  limits  of  any 
particular  state,  and  over  which  the  process  of  the  courts  of  such  individ- 
ual state  did  not  run.  If,  therefore,  the  Delaware  bay,  from  the  pitch  of 
the  cai)es  upwards,  lies  within  the  territorial  limits  either  of  the  state  of 
Delaware  or  New  Jersey,  and  is  under  the  jurisdiction  of  either  or  both 
of  these  states,  the  courts  of  the  United  States  can  take  no  cognizance  of 
offences  committed  on  the  bay,  but  such  offences  are  to  be  inquired  of  and 
punished  by  the  particular  state  within  whose  jurisdictional  limits  they 
are  committed. 


Emory  vs.  Collinqs.  327 

conceived  malice,  but  on  the  moment,  and  that  he  complained  much 
of  the  plaintiff  having  killed  his  geese. 

This  testimony  was  objected  to,  and  insisted  on. 

Frame.  The  plaintiff  goes  for  vindictive  or  exemplary  damages; 
the  evidence  explains  the  quo  animo  and  the  provocation. 

J.  M.  Clayton.     We  don't  object  to  competent  proof  of  the  state 

The  state  of  Delaware  has  uniformly  claimed  the  sole  and  exclusive 
jurisdiction  over  the  whole  of  the  Delaware  bay  to  low  water  mark  on  the 
Jersey  shore,  and  it  has  to  a  certain  extent  used  and  exercised  jurisdiction 
over  the  bay  and  river  by  grants  of  territory,  acts  of  restrictive  legisla- 
tion, and  service  of  process.  On  the  part  of  the  United  States  there  has 
been  no  resistance  of  this  claim ;  but,  on  the  contrary,  such  acknowledge- 
ment of  the  state's  jurisdiction  as  can  be  inferred  from  the  acceptance  on 
several  occasions  of  cessions  by  this  state  of  certain  parts  of  the  bay  and 
river  for  the  purpose  of  erecting  forts,  piers  and  breakwaters,  for  defence 
against  the  enemy,  or  for  the  protection  of  commerce.  On  the  part,  also, 
of  the  state  of  New  Jersey,  this  claim,  though  resisted  in  its  full  extent, 
has  been  partially  acceded  to  and  acknowledged,  that  state  having  lim- 
ited her  claim  of  jurisdiction  to  the  main  ship  channel  of  the  bay.  There 
have  been  several  efforts  made  by  New  Jersey  to  settle  this  question  of 
boundary  between  us,  and  it  is  to  be  regretted  that  our  legislature  has  not 
acceded  to  the  proposition  for  a  conventional  arrangement,  or  adopted 
some  other  course  to  establish  the  validity  of  our  claim.  So  long  back  as 
1782,  John  Dickinson,  in  a  message  to  the  general  assembly  of  this  state, 
informed  that  body  that  a  resolution  had  been  adopted  by  the  legislature 
of  New  Jersey  appointing  commissioners  "  for  settling  and  establishing 
the  line  of  jurisdiction  between  that  state,  Pennsylvania  and  this  state ;  " 
that  commissioners  had  also  been  appointed  by  the  state  of  Pennsylvania; 
and  he  gave  it  as  his  opinion  that  such  a  measure  was  "  proper  to  be 
taken  on  our  part  for  settling  the  line  of  jurisdiction  in  the  bay  and  river 
Delaware."  The  recommendation  was  not  acted  upon  by  the  assembly, 
and  though  similar  propositions  have  since  been  made  by  New  Jersey, 
they  have  never  been  acceded  to.  The  convention  went  on  between  New 
Jersey  and  Pennsylvania,  and  resulted'  in  an  amicable  division  of  the 
islands,  &c.  within  the  river,  and  an  agreement  that  each  state  should 
enjoy  and  exercise,  under  certain  restrictions,  a  concurrent  jurisdiction 
upon  the  waters  of  the  river;  but  that  all  capital  and  other  offences  com- 
mitted on  the  river,  the  juridical  investigation  and  determination  thereof 
should  be  exclusively  vested  ip  the  state  wherein  the  offender  should  be 
first  apprehended,  arrested  or  prosecuted. 

In  November,  1820,  the  legislature  of  New-Jersey  passed  a  law  author- 
izing the  governor  to  appoint  commissioners  to  meet  commissioners  to  be 
Appointed  by  this  state  for  the  purpose  of  settling  the  boundary  line  be- 
tween the  states  and  defining  the  jurisdiction  of  each.  The  subject  was 
laid  before  our  legislature  and  referred  to  a  committee,  who  reported  that 
it  was  inexpedient  at  that  time  to  appoint  commissioners  for  this  purpose. 

According  to  the  original  law  defining  the  boundaries  of  the  several 
counties  in  New  Jersey,  passed  in  1709-10,  the  counties  lying  upon  the 
bay  were  bounded  by  the  bay  shore,  which,  so  far  as  it  goes,  countenances 
the  claim  set  up  by  this  state  to  the  whole  of  the  Delaware ;  but  in  1821, 
after  a  failure  of  their  proposition  made  the  year  previous  for  the  mutual 
appointment  of  commissioners,  the  legislature  of  that  state  enacted  and 
declared  that  the  boundary  lines  of  the  counties  of  Salem,  Cumberland 


328  Emory  vs.  lollings. 

of  feeling  under  which  the  deft,  did  the  act;  but  we  object  to  his  dec- 
larations as  any  evidence  of  the  quo  animo. 

Frame.     They  are  admissible  as  a  part  of  the  res  gesta. 

Per  cur.  The  evidence  may  go  to  the  jury.  The  plaintiff  seeks 
to  recover  not  merely  compensatory  damages,  but  to  make  an  exam- 
ple of  the  deft.     If  Collings  was  under  the  impression  that  Emory  had 

and  Cape  May  were  the  main  ship  channel  in  the  river  and  bay  of  Dela- 
ware adjoining  those  counties,  and  they  appropriated  money  for  trying 
the  right  of  the  state  to  this  extent,  and  again  made  an  overture  for  the 
arrangement  of  the  dispute  by  commissioners.  The  subject  was  again 
brought  before  our  legislature  for  consideration,  and  the  house  of  repre- 
sentatives resolved  "  that  the  jurisdiction  and  sovereignty  of  this  state 
extends  over  the  bay  or  river  Delaware  to  low  water  mark  on  the  Jersey 
shore,"  and  again  refused  to  appoint  commissioners.  The  subject  was  not 
acted  upon  in  the  senate. 

Thus  stands  the  case  at  present.  The  state  of  Delaware  claiming  the 
sole  and  exclusive  jurisdiction  and  title  to  the  Delaware  Bay,  as  well  by 
virtue  of  ancient  charters  as  constant  occupation,  enjoyment  and  usage  to 
a  time  running  back  previously  to,  and  at  the  declaration  of  indepen- 
dence —  a  claim  not  controverted,  or  denied,  but  rather  admitted,  by  the 
United  States  —  a  claim  at  one  time  admitted  on  the  part  of  the  state  of 
New  Jersey,  so  far  as  the  fixing  the  boundaries  of  her  counties  in  accord- 
ance with  it,  may  fairly  be  construed  an  admission,  and  now"  only  denied 
by  that  state  so  far  as  regards  one  half  of  the  bay,  from  the  main  ship 
channel  eastwardly  to  the  Jersey  shore.  We  speak  of  the  claim  of  this 
state  because  we  apprehend  that  from  continual  claim,  or  rather  from 
the  undisturbed  and  undisputed  use,  occupancy  and  enjoyment  of  terri- 
tory extending  back  beyond  the  declaration  of  independence,  the  right 
and  title  to  such  territory  is  established  better  and  more  certainly  than 
by  reference  to  chartered  limits.  Since  that  great  event  the  states  of  this 
Union  hold  their  territory  not  under  charters  from  the  British  crown,  but 
under  the  charter  which  was  sealed  with  the  blood  and  establishen  by  the 
persevering  valour  of  our  revolutionary  fathers;  from  that  time  each 
state  became  itself  a  proprietor ;  holding  of  no  other ;  absolutely  seized  of 
the  independent  sovereignty  and  uncontrolled  jurisdiction  within  and 
over  the  territory  then  actually  in  its  occupation  and  enjoyment;  with 
this  territory,  thus  defined,  and  only  thus  limited,  she  entered  the  confed- 
eracy and  still  holds  to  the  same  extent,  unless  she  has  granted  any  of  her 
territory  to  the  United  States  as  most  of  the  states  have  done  for  par- 
ticular objects.  At  the  date  of  our  independence,  then,  the  Delaware  Bay 
was  claimed  by  and  in  the  occupation  and  enjoyment  of  the  state  of  Dela- 
ware. From  the  Delaware  shore  out  so  far  as  the  main  ship  channel  or 
middle  of  the  bay  the  state  of  New  Jersey  did  not  then  and  has  not  since 
asserted  any  title  or  set  up  any  claim  of  jurisdiction;  to  this  extent, 
therefore  this  state  has  always  been  in  the  undisputed  and  undisturbed 
occupation  and  use  of  the  bay,  claiming  title  and  exercising  jurisdiction 
over  its  bed  and  waters.  Without  deciding,  then,  to  the  extent  of  the 
resolution  of  our  house  of  representatives,  "  that  the  jurisdiction  and  sov- 
ereignty of  this  state  extends  over  the  bay  or  river  Delaware  to  low  water 
mark  on  the  Jersey  shore,"  which  is  unnecessary  in  this  case,  we  are 
unanimously  of  the  opinion  that  the  sovereignty  and  jurisdiction  of  this 
state  does  extend  over  the  bay  and  river,  at  least  so  far  as  the  main  ship 
channel  or  middle  thereof;  and  in  this  opinion  we  are  confirmed  bv  the 


I 


EmOCY  vs.  COLLINGS.  329 

killed  Ihis  geese,  and  on  this  impression,  being  excited,  threw  the 
geese  down  the  well,  whether  this  impression  was  well  founded  or 
not,  it  would  go  to  disprove  malice;  and  his  declarations  to  tliat 
effect  made  at  the  time,  being  part  of  the  res  gesta,  may  be  given  in 
evidence.     Roscoe  on  Evidence  22,  &c.     1  Phillip's  Ev.  218. 

The  plaintiff  had  a  verdict. 

Baies  and  Clayton  for  plaintiff. 

Frame  for  defendant. 

general  doctrine  recognized  by  the  supreme  court  of  the  United  States  in 
the  case  of  Handly's  lessee,  vs.  Anthony  et  al.  where  chief  justice  ]!klar- 
shall  lays  it  down,  that  "  when  a  great  river  is  the  boundary  between  two 
nations  or  states,  if  the  original  property  is  in  neither,  and  there  be  no 
convention  respecting  it,  each  holds  to  the  middle  of  the  stream.  But 
when,  as  in  (that)  case,  one  state  is  the  original  proprietor,  and  grants 
the  territory  on  one  side  only,  it  retains  the  river  within  its  domain,  and 
the  newly  created  state  extends  to  the  river  only."  The  state  of  Delaware 
here  claims  to  be  the  original  proprietor  of  the  whole  bay,  which  is  dis- 
puted by  New- Jersey  only  as  it  regards  half  of  it;  either,  then,  according 
to  the  principles  of  general  law,  supposing  the  original  property  of  the 
bay  to  be  in  neither  of  the  states,  or  according  to  the  constant  occupancy 
of  this  state  undisputed  by  New-Jersey,  our  jurisdiction  to  the  middle  of 
the  stream  or  main  ship  channel,  is  established.  All  the  testimony  in  this 
cause  goes  to  show  that  the  offence  charged  in  this  indictment  was  com- 
mitted on  the  west  side  of  the  main  ship  channel  or  middle  of  the  bay, 
and  we  are  therefore  of  opinion  that  it  is  within  the  jurisdiction  of  this 
state,  and  consequently  that  this  court  has  competent  authority  to  in- 
quire into  it. 

The  United  States  has  jurisdiction  over  a  particular  part  of  the  Dela- 
ware bay  by  virtue  of  a  cession  from  this  state.  The  terms  of  that  cession 
are,  "  that  all  the  jurisdiction  and  title  of  the  state  of  Delaware  over  and 
to  so  much  of  the  shore,  bed  and  waters  of  the  Delaware  ba^^  as  are  neces- 
sary for  the  erection  of  a  breakwater  or  other  harbor,  and  for  the  con- 
struction of  such  defences  as  may  be  thought  proper  at  or  near  the  mouth 
of  said  bay,  be  and  the  same  is  hereby  ceded  to  the  United  States  of  Am- 
erica." The  extent  of  this  cession  is  indefinite  —  so  much  as  is  necessary 
for  the  erection  of  a  breakwater  —  and  the  act  points  out  no  means  of  de- 
termining what  portion  of  the  shore,  bed  and  waters  is  necessary  for  this 
purpose ;  and  we  are  unable  to  measure  its  extent,  except  by  reference  to 
what  is  actually  used,  to  wit,  the  line  of  the  breakwater  as  made  cr  con- 
templated to  be  made,  its  length,  breadth  and  depth.  This  must  be  the 
fair  construction  of  the  act ;  for  no  more  land  can  be  necessary  for  a  par- 
ticular purpose  than  is  used  in  effecting  that  purpose,  and  it  reduces  the 
extent  of  the  state's  grant  in  this  instance  to  a  very  narrow  compass. 
Yet,  if  the  offence  charged  in  this  indictment  had  been  committed  on  the 
breakwater,  or  at  any  place  now  used  or  intended  to  be  used  in  the  course 
of  its  erection,  we  are  of  opinion  that  such  offence  would  be  cognizable  in 
the  United  States  courts  only,  notwithstanding  the  partial  reservation  of 
jurisdiction  subsequently  contained  in  the  act.  The  testimony  in  this 
cause  leaves  us  no  ground  to  doubt  upon  this  point.  At  the  time  the  of- 
fence is  alledged  to  have  been  committed,  the  brig  lay  wholly  without  the 
present  or  contemplated  line  of  the  breakwater,  and  not  in  any  portion  of 
the  bay  which  is  or  will  be  used  or  can  be  necessary  for  its  erection  and 
completion.    The  jurisdiction  therefore  still  remains  in  the  state. 


330  Farmers'  Bank  vs.  Stidham's  garnishee. 


CLEMENT  SCOTT  vs.  WILLIAM  HEATHER. 

If  a  bailee  surrenders  the  pledge  to  bailor  his  lien  is  gone. 
An  agent,  if  he  has  authority,  may  transfer  the  right  of  his  principal  without 
declaring  his  agency. 

Replevin  for  a  horse;  value  sixty  dollars.  Pleas  lion  cepit  and 
property.     Issues. 

It  appeared  from  the  evidence  that  plaintiff  had  bought  the  horse 
in  question  from  one  Ezekiel  Simpson,  and  that  he  was  to  belong  to 
plff.'s  brother,  Jesse  Scott,"  when  (or  if)  he  paid  for  him."  The 
two  brothers  executed  a  note  to  Simpson  for  the  price  of  the  horse, 
Jesse  as  principal  and  Clement  as  surety,  but  "  Clement  was  to  hold 
on  till  Jesse  paid  for  him."  Some  time  after  Jesse  rode  the  horse 
from  his  brothers  and  traded  him  for  a  worthless  one  with  a  Mr. 
Marvel  who  sold  him  to  the  deft.  It  was  proved  that  Clement  had 
said  he  gave  Jesse  liberty  to  take  the  horse  and  trade  him  for  a  pair 
of  steers,  or  a  gentler  horse. 

The  Court  by  the  Chief  Justice,  charged : 

First.  That  if  a  bailee  surrenders  possession  of  the  pledge  to  the 
bailor  his  lien  is  gone. 

Second.  That  an  agent  may  transfer  all  the  right  of  his  principal, 
if  he  has  authority,  without  declaring  that  he  is  acting  as  such  agent. 
Ex.  gr.    The  case  of  a  factor  selling  flour,  &c.  &c. 

Verdict  for  plaintiff,  $40. 


FARMERS'  BANK  of  the  STATE  OF  DELAWARE  vs.  JOSEPH 
BROWN,  garnishee  of  CHARLES  STIDHAM. 

If  money  be  placed  in  A.'s  hands  by  B.  to  pay  his  debt  to  C,  he  is  liable  to  C. 
in  assumpsit,  but  cannot  be  attached  as  the  garnishee  of  B. 

Attachment.     Plea  nulla  bona. 

Frame  for  plff.  proposed  to  prove  by  John  Manlove,  Esq.,  cashier 
of  the  Bank,  an  admission  of  Brown  that  Stidhani  had  placed  money 
in  his  hands  to  pay  this  debt  due  the  Bank. 

Bates  for  the  garnishee  objected.  Brown  is  not  the  debtor  of 
Stidham.  The  debt  (if  any)  is  due  from  him  to  the  Bank,  for  money 
had  and  received  to  their  use,  and  for  which  assumpsit  would  lie  at 
the  suit  of  the  Bank.  A  recovery  had  here  could  not  be  pleaded  in 
bar  to  such  an  action. 

Per  curiam.  This  evidence  is  not  applicable  to  the  case.  The 
proof  offered  is  not  that  Brown  owes  Stidham,  but  that  he  owes  the 
Bank ;  and  his  liability  to  the  Bank  cannot  be  enforced  in  this  way. 

Frame,  for  plaintiff. 
Bates,  for  Brown. 


Bank  of  Wil.  and  Brandy  wine  vs.  Simmons.  331 


DAXIEL  GREEX  vs.  JOHN  LOCKWOOD'S  adm'r. 

Evidence  of  discharge  by  parol  of  a  sealed  instrument  is  inadmissible  under 

the  plea  of  payment. 
Eleven  years  can  never  raise  a  presumption  of  payment  from  lapse  of  time. 

Debt  on  a  single  bill  given  by  Jobn  Lockwood  and  Thomas  Green 
for  $343  94,  dated  1  Jan.  1814,  with  sundry  credits  up  to  1822. 

Pleas,  non  est  factum;  payment,  discount.  • 

Defts.  counsel  asked  a  witness  if  he  had  not  heard  the  plaintiff  say 
he  had  made  arrangements  with  Thomas  Green  for  the  payment  of 
this  note  and  was  to  look  to  him  alone.     Objected  to. 

Per  curiam.  The  plea  is  payment.  Under  it  you  cannot  dis- 
charge this  sealed  instrument  by  proof  of  any  parol  understanding. 
Proof  of  any  such  agreement  to  release  or  discharge  the  obligation  of 
Lockwood  is  therefore  inadmissible. 

The  case  was  argued  on  the  presumption  of  payment  from  lapse 
of  time;  but 

The  Court  said 

It  was  but  eleven  years  from  the  last  payment  to  the  commence- 
ment of  the  action;  and  this  length  of  time  can  never  afford  a  pre- 
sumption of  payment. 

Verdict  for  plaintiff. 

Bates  and  Frame  for  plaintiff. 

Ridgely  and  Huffington  for  defendant. 


THE  PRESIDENT,  DIRECTORS  and  COMPANY  of  the  BANK  of 
WILMINGTON  and  BRANDYWINE  vs.  WILLIAM  SIMMONS. 

Variance  in  the  date  of  an  instrument  declared  on  is  fatal ;   the  date  being 

matter  of  description. 
Where  a  note  is  made  payable  at  a  certain  place  demand  at  the  place  must  be 

proved. 
Demand  must  be  on  the  last  day  of  grace. 
The   indorsement  of  the  notary  taken  as  evidence  of   the   time   of   demand, 

though  the  protest  bore  a  different  date,  on  a  proof  of  his  usage. 
If  the  holder  of  a  note  takes  a  higher  security  from  the  drawer  it  discharges 

the  indorser,  though  time  be  not  given. 

Capias  case.     Narr ;  pleas ;  reps. ;  issues. 

The  declaration  set  out  two  notes;  one  dated  22d  March,  1822, 
for  $160,  at  two  months,  drawn  by  Joseph  and  Thomas  Gilpin,  in 
levor  of  deft.,  and  endorsed  to  plffs. ;  the  other  dated  28  July,  1817, 
for  $800,  at  six  months,  drawn  by  William  Walker,  in  favour  of  F. 
Leonard,  by  him  endorsed  to  deft.,  and  from  deft,  to  the  Bank.  The 
pleas  were  non  assumpsit.  2d.  Payment;  3d.  That  plffs.  had  made 
an  arrangement  with,  and  given  time  to  the  makers  and  thereby  re- 
leased the  deft.  4th.  Accord  and  satisfaction  by  the  makers.  Plffs. 
gave  in  evidence  a  note  drawn  by  the  Gilpins,  dated  21st  March, 
1822;  and  a  note  drawn  by  Walker,  dated  28//t  7th  month,  1817. 
They  proved  the  endorsement,  protest  and  notice  in  regard  to  the 
first  note  by  the  notary;  and  the  protest  of  the  second  note  by  the 
register  of  a  deceased  notary.      The  protest  was  dated  30th  Septem- 


383  Bank  op  Wil.  and  Brandywinb  vs.  Simmons. 

her,  and  the  notary  had  endorsed  "  noted  29th  September,  1817.  It 
was  proved  to  have  been  his  custom  to  draw  out  and  date  the  protest 
the  day  after  it  was  made.  The  Gilpins  had  no  funds  in  Bank  when 
their  note  became  due. 

The  deft,  gave  in  evidence  the  record  of  a  judgment  at  the  suit  of 
plffs.  against  William  Walker,  dated  21  April,  1818,  for  $3,357  31, 
but  he  could  not  connect  it  with  the  vote  by  any  proof. 

Hamilton  and  Read,  junior,  for  deft.  First,  as  to  the  Gilpin 
note.  There  is  a  fatal'variance  between  the  note  declared  on  and  the 
note  proved:  the  date  of  the  former  is  stated  as  the  22d  March,  and 
the  latter  bears  date  March  2l8t.  The  date  is  matter  of  description 
and  important.  There  is  no  identity  between  the  two.  Again.  This 
note  is  made  payable  at  the  Bank  of  Wilmington  and  Brandy  wine, 
and  there  was  no  demand  at  the  Bank,  nor  is  the  want  of  funds  al- 
ledged  in  the  narr  as  an  excuse  for  such  demand.  According  to  the 
case  of  Bank  of  Wilmington  and  Brandywine  vs.  Cooper's  ad- 
ministrator, this  also  is  fatal. — {ante  10.) 

Second.  The  Walker  note.  After  this  note  became  due  the  plffs. 
took  Walker's  bond  and  entered  judgment  upon  it  with  a  stay  of  three 
months.  This  discharged  the  indorsers.  Again.  The  protest  is  ir- 
regular. It  is  established  that  the  demand  must  be  made  on  the  last 
day  of  grace,  in  this  case,  on  the  63d  day.  The  jury  will  determine 
whether  this  demand  was  made  on  the  63d  or  the  64th  day.  If  the 
latter,  it  is  too  late.  What  is  the  evidence?  The  notarial  register  of 
Roche  the  deceased  notary.  But  that  is  against  them  as  it  shows  that 
the  demand  was  made  on  the  30th  of  September  or  64th  day.  They 
seek  to  explain  this  by  evidence  of  Roche's  usage.  They  first  bring 
the  book  to  prove  the  demand;  and  then  contradict  the  book  by  at- 
tempting to  disprove  the  date. 

Wales  and  Rogers  for  plaintiffs.  The  note  declared  on  is  dated 
22d  March,  the  note  proved  bears  date  March  21st,  but  is  for  the 
same  sum,  same  parties,  &c.  The  jury  must  be  satisfied  that  they 
are  identical  and  that  is  sufficient.  We  admit  that  the  demand  should 
be  made  on  the  last  day  of  grace ;  that  is,  in  the  case  of  Walker's  note, 
on  the  29th  of  September.  Have  we  not  proved  it?  The  nota- 
rial register  states  the  demand  to  have  been  made  on  the  29th.  It 
was  then  noted  for  protest;  and  it  is  proved  to  have  been  the  custom 
of  the  notary  to  draw  out  the  protest  on  the  next  day.  And  this  is 
the  use  of  noting.  It  fixes  the  time  of  demand  and  refusal.  As  to 
the  other  defence,  it  has  not  been  supported  by  any  proof  that  the 
bond  and  judgment  have  any  connection  with  this  note.  If  the  bond 
had  included  the  note  it  would  certainly  have  been  taken  up  by 
Walker  when  the  bond  was  given.  The  possession  of  the  note  by 
the  Bank  is  conclusive  that  the  judgment  is  an  entirely  different 
transaction.     2  Stark.  264;  2  Term  Rep.  714;  4  do.  179. 

By  the  Court.  Both  the  first  and  second  objections  to  the  note 
drawn  by  the  Messrs.  Gilpins  lare  equally  fatal  to  the  plaintiffs  recov- 
ery. The  variance  in  the  date  is  conclusive;  and  the  court  decided 
in  the  Bank  of  Wilmington  and  Brandywine  vs.  Cooper's  adminis- 
trator, that  where  a  note  is  made  payable  at  a  certain  place,  demand 
at  that  place  must  be  averred  and  proved;  and  though  the  want  of 
funds  mav  excuse  the  demand,  the  excuse  must  be  set  out. 


I 


Tatlow  vs.  Jaquett.  333 


As  to  the  other  note;  whenever  a  man  indorses  he  undertakes  to 
pay  the  bill  provided  a  demand  shall  be  made  on  the  drawer  on  the 
last  day  of  grace  and  reasonable  notice  be  given  him  of  the  non-pay- 
ment. The  demand  here  should  have  been  made  on  the  29th  of  Sep- 
tember, 1817.  Was  it  made  then?  The  note  has  an  indorsement  in 
the  hand  writing  of  Roche  the  notary,  "  noted  29th  September,"  and 
his  general  custom  is  proved  to  have  been  to  draw  out  the  protest  the 
day  after  the  demand.  The  protest  here  is  dated  the  30th.  If  the 
demand  was  on  that  day  it  is  too  late  and  the  deft,  the  indorser  is  dis- 
charged, but  if  the  jury  take  the  indorsement  made  by  the  notary 
with  the  proof  of  his  practice  as  the  evidence  of  the  demand  it  was  in 
time.  On  the  other  ground;  if  the  bond  and  judgment  include  this 
note  the  indorser  is  discharged  whether  time  was  given  or  not,  for 
the  security  is  of  a  higher  nature  and  merges  the  note.  But  the  deft, 
must  have  proved  to  the  satisfaction  of  the  jury  that  this  note  was 
included  in  the  bond  of  which  no  evidence  has  been  offered. 

(The  court  said  nothing  about  the  misdescription  of  this  note  in 
the  date  28th  July  for  28th  of  seventh  month,  not  being  clear  on  the 
subject,  and  a  decision  on  that  point  not  being  urged.) 

Verdict  for  plaintiff,  $1,598  00. 

Wales  and  Rogers  for  plaintiffs. 

Hamilton  and  Read,  Jr.  for  defendant. 


TATLOW  vs.  JAQUETT. 

One  may  justify  the  repetition  of  slanderous  words  if  he  merely  repeats  what 
he  has  heard,  and  gives  his  author  at  the  time. 

If  other  slanders  be  proved  to  show  malice  the  deft,  may  justify  without  plead- 
ing, as  to  them. 

Deft,  cannot  plead  the  general  issue  and  also  matter  amounting  to  the  gen- 
eral issue. 

Capias  case. 

This  was  an  action  of  slander.  The  declaration  charged  the  speak- 
ing these  words  concerning  the  plff:  "He  (innuendo  Tatlow)  stole 
wheat  from  his  Jaquett's  barn;  and  he  (Tatlow)  stole  plank  from 
the  Wilmington  Bridge  to  mend  his  (Tatlow's)  barn  floor;  and  he 
(Jaquett)  could  prove  it;  and  he  (Jaquett  could  prove  more  than 
that,"  in  the  presence  and  hearing  of  Lewis  Ashton,  Robert  MTar- 
lane  and  others.  Second.  And  these  words,  in  the  presence  and 
hearing  of  John  Wiley  and  others:  "He  (Tatlow)  had  stolen  four 
bushels  of  wheat  and  also  plank  to  lay  or  mend  a  floo.r  in  a  barn  or 
stable ;  and  that  he  (Tatlow)  had  stolen  a  calf."  Third.  In  the  pres- 
ence and  hearing  of  T.  M.  Pennington  and  others:  "He  (Tatlow) 
stole  wheat  from  Thomas  Stewart's  house,  and  gave' him  (T.  S.)  fifty 
cents  not  to  say  any  thing  about  it."  The  deft,  pleaded;  first,  not 
guilty.  Second.  That  before  speaking  and  publishing  the  words  the 
said  Peter  Jaquett  had  heard  from  and  been  told,  by  Adam  Shivery 
and  George  Shivery,  that  the  said  Tatlow  had  stolen  plank  from  the 
Wilmington  Bridge;  and  had  heard  from  and  been  told  by  the  said 
Adam  Shivery,  that  the  said  Tatlow  had  stolen  wheat  from  his  (Ja- 
quett's) farm;  and  had  heard,  &c.,  from  George  Shivery  that  Tatlow 


334  Tatlow  vs.  Jaquett. 

had  stolen  a  calf  of  Thomas  Jaquett;  and  that  at  the  time  of  stating 
these  words  he  gave  the  names  of  the  persons  of  whom  he  had  heard 
them.  Third.  That  the  declarations  in  relation  to  the  wheat  and 
calf,  were  made  with  an  explanation  of  the  circumstances  that  showed 
the  deft,  meant  merely  to  charge  the  plff.  with  a  trespass.  Issue  on 
the  plea  of  not  guilty.  Replication  generally  and  issue  on  the  second 
plea;  and  demurrer  to  the  third  plea  for  these  causes:  first,  that  the 
deft,  has  therein  pleaded  matter  of  evidence;  second,  that  the  plea 
amounts  to  the  general  issue;  third,  that  it  is  a  plea  of  justification 
without  admitting  the  words  laid  in  the  narr;  fourth,  it  sets  forth  the 
alledged  effect  of  the  words  spoken  and  not  the  words  themselves. 

The  plff.  proved  the  slanderous  words  laid  in  the  declaration;  and 
also,  by  way  of  showing  malice,  that  the  deft,  had  said  of  plff.  "  that 
he  had  found  a  bolt  of  cloth  along  the  road  and  secreted  it,  which 
was  as  good  as  stealing." 

The  deft,  proved  by  the  Messrs.  Shivery,  that  they  had  communi- 
cated to  him  the  several  charges  laid  in  the  narr ;  and  also  that  they 
had  told  him  about  the  cloth,  and  were  about  to  detail  the  circum- 
stances in  relation  to  the  cloth;  when  plff.'s  counsel  objected  to  the 
testimony. 

Bayard.  There  is  nothing  in  the  declaration  about  this  cloth, 
and  it  is  not  now  proved  as  a  distinct  ground  of  damage,  but  only  to 
show  the  malice  with  which  the  deft,  was  actuated  in  slandering  the 
I»lff.  The  deft,  cannot  justify  in  relation  to  this  matter  by  proving 
that  he  heard  it  but  only  by  proof  of  the  truth  of  the  words. 

The  Court.  The  matter  in  relation  to  the  cloth  does  not  amount 
to  a  charge  of  larceny.  The  witness  proves  the  charge  to  have  been 
that  Tatlow  found  the  goods  along  the  road  and  secreted  them.  The 
proof  on  this  subject  comes  on  the  deft,  by  surprise.  Not  being  laid 
in  the  declaration  he  had  no  opportunity  of  justifying,  nor  of  plead- 
ing that  he  merely  repeated  words  spoken  by  another;  and,  as  they 
are  now  given  in  evidence  to  aggravate  the  damages  by  showing  mal- 
ice, the  deft,  may  rebut  the  imputation  of  malice  by  proof  either  of 
the  truth  of  the  words  or  of  the  innocent  manner  of  his  speaking 
them,  as  that  he  repeated  what  he  heard  from  another,  and  gave  his 
authority. 

Where  a  man  hears  a  slander  he  may  repeat  it  if  he  does  so  in  the 
same  words  and  gives  his  author  at  the  time.  2  Stark.  879,  875. 
This  is  the  settled  rule  of  law  whether  reasonable  or  not,  and  we  do 
not  here  pretend  to  defend  its  reasonableness;  but  it  is  for  the  jury 
to  say  whether  Jaquett  gave  the  Shiverys  as  his  authors  on  all  occa- 
sions when  he  repeated  and  gave  circulation  to  the  slanderous  charges 
laid  in  the  declaration;  and  whether  he  confined  himself  on  all  such 
occasions  precisely  to  what  he  had  heard  from  them.  It  is  not  enough 
that  others  told  facts  or  circumstances  to  Jaquett  from  which  he 
might  infer  larceny;  he  must  prove  that  another  told  him  the  same 
thing  which  he  has  repeated.  It  is  not  now  denied  that  the  words 
were  spoken;  and,  if  the  plea  of  justification  has  failed,  as  in  our 
opinion  it  has,  the  plaintiff  is  entitled  to  recover.  If  he  has  really 
been  injured  in  his  reputation  or  character  by  these  slanders;  or  the 
deft,  circulated  them  maliciously  and  wantonly,  for  the  purpose  of 


I 


Clark  vs.  Hill.  335 

so  injuring  him,  the  Jury  are  at  liberty  to  give  exemplary  damages 
for  the  sake  of  public  example  and  warning  to  others. 

The  pltf.  had  a  verdict  for  $6^0. 

Bayard,  Rogers  and  Read,  junior,  for  plaintiff, 

Wales  and  Booth  for  defendant. 

On  the  demurrer  to  third  plea  — 

Booth  said,  the  question  is  not  whether  the  matter  in  this  plea 
might  not  have  been  given  in  evidence  under  the  general  issue;  but 
whether  it  may  be  pleaded  specially.  And  he  cited  Gould.  328. 
1  Saund.  131,  n;  1  Chitty  PI.  488;  4  Coke  14,  12. 

Bayard.  The  party  here  has  pleaded  the  general  issue:  he  can- 
not also  plead  it  specially.  There  are  cases  where  a  man  may  plead 
a  matter  specially,  or  give  it  in  evidence  under  the  general  issue, 
but  he  can  never  do  both.  In  all  cases  of  justification  the  party  must 
justify  the  words  and  not  the  effect  of  the  words.  7  Cowen,  38.  11 
Johns.  Rep.;  10  Johns  Rep.  291. 

The  court  sustained  the  demurrer. 


DANIEL  NEWBOLD  vs.  ROBERT  POLK. 
A  justice  cannot  refer  a  cause  but  on  the  application  of  a  party. 

Certiorari. 

The  record  showed  that  the  parties  appeared  and  after  opening  the 
matter  "  the  justice  deemed  it  necessary  to  have  the  case  tried  by 
referees"  and  referred  it,  without  application  from  either  of  the 
parties. 

Court.  The  justice  was  bound  to  try  the  cause  himself,  unless 
one  of  the  parties  claimed  a  trial  by  freeholders.     Dig.  335. 

Judgment  reversed. 

R.  H.  Bayard  for  defendant. 


LEVI  CLARK  vs.  SARAH  HILL. 

To  maintain  trespass  the  plfT.  must  be  in  the  actual  possession.  A  seizin  in 
law  is  not  sufficient;  nor  will  a  tortious  or  clandestine  entry  give  the 
possession. 

Trespass  before  Justice  Cornwell  removed  to  this  court  on  a  plea 
of  freehold. 

Narr.  Pleas.  First.  That  the  record  upon  which  the  action  is 
founded  does  not  contain  any  statement  of  the  plff.'s  demand  before 
the  justice,  and  is  therefore  imperfect  and  defective.  Dig.  360. 
Second.  Not  guilty. 

The  court  directed  the  jury  to  be  sworn  on  the  second  plea,  reserv- 
ing the  first  for  their  own  decision  on  inspection  of  the  record. 

Rogers,  for  plaintiff:  Claimed  title  in  the  locus  in  quo  under 
patent  as  far  back  as  1754,  and  he  traced  the  title  by  sundry  mesne 
conveyances  to  the  plff.,  whose  deed  bore  date  17  November,  1829. 


336  Clark  vs.  Hill. 

He  proved  that  tlie  place  in  which'  the  trespass  was  committed  was 
within  the  lines  of  the  plff.'s  title  deeds,  but  it  also  appeared  that  the 
land  had  been  in  dispute  as  far  back  as  1814,  and  the  possession  was 
doubtful.  The  only  act  of  ownership  which  the  plff.  had  exercised 
over  it  was  the  cutting  of  five  or  six  cords  of  wood  in  the  sprin'g  of 
1832.  The  defendant  objected  to  the  cutting  at  the  time;  said  it  was 
over  her  lines,  and  took  away  a  part  of  the  wood.  She  had  frequent- 
ly cut  on  the  land  before  that,  large  quantities  of  wood  and  rails. 

Mr.  Rodney  for  deft,  moved  a  nonsuit.  There  is  no  principle 
better  settled  than  that  the  plaintiff  in  an  action  of  trespass  must  show 
himself  to  have  been  in  possession  at  the  time  of  the  trespass  commit- 
ted. There  is  no  such  proof  here.  Mrs.  Hill  has  always  been  in  pos- 
session. The  locus  in  quo  is  sufficiently  distinct.  She  claims  and  is 
in  possession  of  all  the  land  on  the  north  side  of  a  certain  branch 
which  divides  her  farm  from  that  of  tlie  plaintiff.  It  is  not  enough 
that  the  old  deeds  under  which  plff.  claims  title  would  include  this 
land  since  it  is  apparent  that  the  deft,  has  held  adversely  and  the  plff. 
was  never  in  actual  possession.  He  attempted  to  get  the  possession  in 
1832,  by  ordering  his  tenant  to  cut  and  carry  away  a  portion  of  the 
wood,  an  attempt  which  was  resisted  at  the  time.  On  that  occasion 
she  asserted  her  right  by  apprising  the  tenant  that  he  was  cutting  on 
her  premises  and  by  actually  carrying  off  a  part  of  the  wood  so  cut. 
This  clandestine  and  irregular  entry  would  not  give  the  plff.  posses- 
sion so  as  to  enable  him  to  maintain  trespass.  There  must  be  an 
actual  bona  fide  possession. 

Rogers.  The  court  will  leave  it  to  the  jury  if  there  be  any  proof 
of  possession.  The  land  in  question  is  undoubtedly  covered  by  the 
plff.'s  title  papers.  The  deed  from  Lowber  to  him  conveyed  him 
the  legal  title  to  the  premises,  and  this  is  prima  facie  evidence  of  pos- 
session. It  is  peculiarly  so  in  relation  to  woodland,  of  which  there 
can  be  but  little  other  evidence  of  actual  occupancy.  And  in  the  case 
of  a  mixed  possession,  the  law  adjudges  it  to  him  who  has  the  legal 
title.  It  was  so  decided  by  this  court  in  the  case  of  Hunter  vs. 
Lank,  ante  10.  We  show  here  some  acts  of  actual  possession  and 
ownership;  a  general  title  to  the  whole  farm  and  the  use  and  enjoy- 
ment of  this  particular  part.  I  admit  that  we  must  prove  possession 
in  this  action,  but  it  may  be  established  by  slight  acts  where  the  plff. 
has  the  legal  title. 

Rodney,  in  reply.  A  seisin  in  law  is  not  a  sufficient  possession  to 
maintain  trespass.  Roscoe  Ev.  380.  And  shall  such  a  seisin  derived 
from  the  deed  of  a  third  party  not  himself  proved  to  have  boon  in 
possession  put  the  plff.  in  possession  of  land  hold  and  claimed  by  us, 
and  thus  throw  us  into  the  condition  of  plff.'s  in  an  ejectment  instead 
of  defts.  T  deny  that  there  is  any  proof  here  of  a  mixed  possession; 
the  possession  was  always  in  the  Hills,  and  never  in  the  plff.  except 
on  one  occasion,  when  he  invaded  our  possession  clandestinely  for  the 
very  purpose  of  getting  up  this  action  of  trespass.  This  is  the  only 
]»retence  of  actual  occupancy  on  the  part  of  the  i>lff.,  though  it  is 
proved  that  there  has  been  some  controversy  or  dismite  about  the 
premises  ever  since  1S14.  This  is  not  therefore  a  mixed  possession, 
and  the  court  will  not  refer  so  bald  a  case  to  the  jury,  but  will  non- 


i 


I 


STEWART  VS.   CLEAVER. 

aiiit  the  plff.,  there  being  a  total  failure  of  proof  in  relation  to  his 
having  been  in  possession. 

By  the  court.  It  appears  from  the  evidence  in  this  case  that  Mr. 
Clark  is  in  possession  of  a  farm,  lying  chiefly,  if  not  altogether,  on 
the  south  side  of  a  certain  branch  called  the  Green  Spring  branch,, 
and  that  Mrs.  Hill  is  the  owner  of  a  farm  on  the  north  side  of  the 
same  branch.  To  a  small  strip  of  woodland  intervening,  but  also  on 
the  north  side,  both  parties  claim  title;but  it  does  not  appear  that  the 
plff.  was  ever  in  the  actual  possession  of  this  woodland,  or  exercised 
any  act  of  ownership  over  it,  but  on  one  occasion,  when  his  tenant 
entered  by  his  orders  and  cut  some  five  or  six  cords  of  wood,  appar- 
ently with  the  sole  purpose  of  placing  himself  in  a  condition  to  treat 
the  deft,  as  a  trespasser.  We  are  of  opinion  that  this  one  act  did  not 
give  him  such  a  possession  as  will  enable  him  to  maintain  trespass. 
The  deft,  was  in  possession;  had  exercised  frequent  and  unequivocal 
acts  of  occupancy  and  ownership;  her  possession  could  not  be  divest- 
ed in  this  manner,  even  though  the  plff.  had  the  legal  title.  Such 
an  act  would  not  of  itself  establish  even  a  joint  occupancy  of  the  plff. 
with  the  deft.  We  agree  to  and  repeat  the  decision  in  Hunter  and 
Lank;  but  this  is  not  the  case  of  a  mixed  ownership  or  common  pos- 
session. It  is,  as  the  proof  now  stands,  the  case  of  the  legal  title,  un- 
accompanied by  any  actual  possession  on  the  one  side,  and  an  ex- 
clusive occupancy  on  the  other.  The  plff.  in  such  a  case  cannot 
maintain  trespass  against  the  party  in  possession,  but  must  resort  to 
his  action  of  ejectment. 

We  therefore  order  a  nonsuit. 

Rogers  for  plaintiff. 

Rodney  for  defendant. 


JOHN  STEWART  vs.  ISAAC  CLEAVER. 

Words  are  not  actionable  in  themselves  unless  they  impute  a  legal  crime. 

Case.     Narr.     Pleas,  non  cul  and  the  act  of  limitations. 

This  was  an  action  on  the  case  for  words.  The  declaration  stated 
the  colloquium  to  be  in  relation  to  the  matters  proved  in  a  certain 
suit  theretofore  depending  before  a  justice  of  the  peace  between 
Cleaver,  the  present  deft,  and  Stewart  the  plff.;  and  the  words  laid 
were — "He  (meaning  Stewart)  proved  it  by  hiring  captain  Bready 
to  swear  to  a  lie  for  $5  he  gave  him."  And  again  — "  He  (meaning 
Stewart)  did  prove  it,  but  it  was  by  getting  Captain  Bready  to  swear 
to  a  lie  for  five  dollars.'' 

The  plff.  gave  in  evidence  the  record  of  a  suit  before  justice 

between  Cleaver  and  Stewart,  and  the  name  of  William  Bready  ap- 
peared on  the  record  as  a  witness,  but  it  did  not  otherwise  appear  that 
he  was  sworn  in  the  cause.  He  proved  the  words  clearly;  and  that 
they  were  spoken  in  relation  to  this  suit.      He  here  rested. 

The  only  defence  set  up  was  that  it  did  not  sufficiently  appear  that 
the  swearing  alluded  to  by  the  deft,  was  in  the  course  of  a  iudicial 

43 


338  Washington  vs.  Richardson. 

proceeding.  Mr.  Wales  laid  it  dovna.  that  this  was  necessary,  other- 
wise the  words  were  not  actionable.  If  A  assert  that  B  had  hired  C 
to  go  before  a  justice, and  swear  to  a  lie,  it  would  not  be  actionable. 
The  swearing  alluded  to  must  be  under  such  circumstances  as  would 
make  false  swearing  perjury;  it  must  be  a  charge  of  subornation  of 
perjury  in  the  course  of  a  judicial  proceeding.  The  court  assented 
to  all  this,  and  so  charged  the  jury;  but  the  case  was  made  out  even 
to  this  extent,  and  the  plff.  had  a  verdict. 

It  appeared  that  the  words  were  spoken  in  a  passion  and  without 
express  malice,  and  the  jury  gave  nominal  damages. 

J.  A.  Bayard  for  plaintiff. 

Wales  for  defendant. 


ELIZABETH  WASHINGTON,  executrix  of  JOHN  WASHING- 
TON, appellant  defendant  below  vs,  JOSEPH  BIOHARDSON, 
appellee  plff,  b. 

An  action  of  trespass  before  a  justice  does  not  abate  by  the  death  of  the  deft. 

Appeal.     Trespass  for  shooting  a  cow. 

An  action  of  trespass  was  instituted  by  Richardson  against  the 
defts.'s  testator,  John  Washington,  before  a  justice  of  the  peace. 
The  trespass  complained  of  was  the  shooting  plff.'s  cow.  Plff.  had  a 
report  and  judgment  in  his  favor  before  the  justice,  and  deft,  ap- 
pealed. After  judgment,  deft,  died,  and  letters  testamentary  were 
duly  granted  to  Elizabeth  Washington,  his  executrix. 

Hamilton,  for  appellant,  contended  that  the  action  was  abated  by 
the  death  of  the  original  deft.  Actio  personalis  moritur  cum  persona  is 
the  general  principle;  and  it  is  expressly  so  by  our  act  of  assembly  in 
relation  to  this  very  matter.  Dig.  359,  60,  (and  Dig.  224  contra.) 
*'  In  such  actions  (to  wit :  '  actions  of  trespass  for  direct  and  immedi- 
ate injuries  in  carrying  away  or  taking,  destroying  or  damaging  goods 
or  chattels ' ")  the  cause  shall  not  continue  or  survive  against  execu- 
tors or  administrators.  It  is  true  that  another  act  of  assembly  saves 
the  abatement  in  general ;  but  the  act  I  have  referred  to  fixes  the  law 
in  this  particular  case,  in  all  actions  of  trespass  cognizable  before  jus- 
tices of  the  peace. 

Bayard,  for  the  appellee.  The  death  of  the  deft,  in  this  case  hap- 
pened after  the  judgment  was  rendered  before  the  justice,  and  if  there 
is  any  abatement  about  it,  it  is  an  abatement  of  the  appeal.  But 
there  can  be  no  abatement  after  Judgment.  The  judgment  before 
the  justice  fixes  the  debt. 

The  court.  The  act  on  page  224  of  the  Digest,  though  prior  in  the 
order  of  arrangement,  is  in  fact  subsequent  in  point  of  time  to  the  act 
on  page  359.  It  gives  the  general  rule  on  this  subject,  and  saves  the 
abatement  "  in  all  personal  actions,  except  actions  for  assault  and  bat- 
tery, defamation,  malicious  prosecution,  or  an  injury  to  the  person, 
or  upon  penal  statutes."  These  two  laws  are  unquestionably  contra- 
dictory, but  that  on  page  224  being  a  general  law  on  the  subject  of 
fiurvivency  of  actions,  and  being  also  subsequent  in  date,  repeals  the 
other.     Leges  posteriores  priores  contrarias  abrogant. 


* 


Bird  vs.  Stilley  and  Rudolph.  339 


On  the  law  applicable  to  the  facts  of  the  case  the  court  referred  to 
the  case  of  Richardson  vs.  Carr,  (ante  142,)  and  repeated  that  deci- 
sion. The  plif.  had  a  verdict  for  $28. 

/.  A.  Bayard,  for  plaintiff. 

Hamilton,  for  defendant. 


I 


MARIA  BIRD  vs.  SUSANNA  STILLEY  and  JOHN  RUDOLPH. 

If  rent  be  charged  on  land  and  the  grantee  release  any  part  of  the  land,  it  is  a 

release  of  the  whole. 
A  Avoman  divorced  a  mensa  et  thoro  entitled  under  the  provisions  of  the  act 

to  execute  a  release. 

Replevin". 

The  deft.,  Rudolph,  made  cognizance  as  bailiff  for  Susanna  Stilley, 
who  avows  the  taking  as  a  distress  for  rent  in  arrear.  Pleas  —  First, 
a  release;  second,  rien  in  arrear.  Replication  to  the  plea  of  release, 
non  est  factum  and  issue.     Issue  also  on  the  other  plea. 

Gilpin,  for  plff.  Thomas  Cartmell  died  in  1804,  and  by  his  last 
will  and  testament  he  bequeathed  an  annuity  of  $40  per  annum  to  his 
wife,  Susanna  Cartmell,  (now  Susanna  Stilley,  the  deft.)  which  he 
charged  on  lands  devised  to  his  four  sons.  One  of  the  sons,  William, 
afterwards  conveyed  the  land  so  devised  to  him,  and  charged  as  afore- 
said with  the  said  annuity  or  rent  charge,  to  Empson  Bird,  and  in 
1818  Susanna  Stilley  executed  to  Bird  a  paper  writing,  releasing  to 
him  one  fourth  part  of  the  said  annuity  charged  as  afs'd.  on  the  lands 
so  conveyed  to  him.  From  Empson  Bird  this  land  passed  to  the  plff. 
in  replevin.  Release  offered  in  evidence,  and  objected  to  as  not  be- 
ing under  seal. 

Bayard.  This  is  no  release ;  it  is  not  a  deed  at  all ;  and  if  it  were, 
it  is  made  by  a  married  woman. 

Wales.  The  annuity  does  not  arise  by  deed,  and  it  is  not  necessary 
that  the  discharge  should  be  by  deed.  As  to  the  coverture,  there  is 
no  evidence  of  it,  and  none  could  be  admitted  on  the  issue  of  non  est 
factum.      If  relied  on,  it  should  have  been  pleaded  specially. 

The  court.  The  question  is  not  whether  this  annuity  or  rent 
charge  could  be  discharged  without  deed;  but  it  is  whether  the  paper 
offered  is  the  deed  of  the  party.  The  plea  sets  up  a  release;  the  rep- 
lication denies  that  it  is  the  deed  of  the  party,  and  the  rejoinder  af- 
firms that  it  is  her  deed.  This  is  the  issue,  and  it  is  not  supported 
by  the  paper  offered.  There  is,  however,  another  issue  on  the  plea 
of  rien  in  arrear  to  which  the  paper  offered  in  evidence  applies,  and 
under  which  it  is  admissible. 

Plff.  gave  in  evidence  a  paper  dated  in  1818,  releasing  all  demands 
on  Empson  Bird,  or  on  his  part  of  the  land  devised  by  Thomas  Cart- 
mell for  the  payment  of  any  part  of  the  said  annuity  of  $40.  Also,  a 
release  under  seal,  dated  April  10th,  1833,  from  Susanna  Stilley  to 
William  M'Sordley,  who  held  by  conveyance  from  Bird  a  part  of  the 
land  devised  to  Mr.  Cartmell,  charged  as  aforesaid. 

Plff.  then  offered  in  evidence  the  deed  of  Thomas  Cartmell,  Jr. 


340  BiBD  V8.  Stilley  and  Rudolph. 

and  Susanna  Stilley  to  Henry  Guest,  conveying  one-fourth  of  the 
land  devised  by  Thomas  Cartmell,  to  wit :  the  share  of  Thomas  Cart- 
iiiell,  Jr.  anU  releasing  to  the  said  Guest  all  demands  on  him,  or  on 
the  land  ho  conveyed  to  him,  on  account  of  the  said  annuity.  Thia 
deed  was  objected  to. 

Bayard.  This  deed  was  executed  by  Mrs.  Stilley  during  cover- 
ture, and  this  is  pleaded  in  the  case  next  on  the  docket  wherein 
Guest  is  the  plff.  in  replevin.  There  are  four  cases  all  depending  on 
the  same  state  of  facts.  To  the  plea  of  coverture  there  is  a  replica- 
tion of  divorce  and  a  demurrer. 

Wales  produced  an  exemplified  copy  of  the  act  of  assembly  divorc- 
ing and  separating  Susanna  Stilley,  from  the  hed  and  hoard  of 
her  husband,  John  Stilley,  and  enacting  that  she  should,  from  thence- 
forth, "  enjoy,  have  and  receive  all  the  rights,  liberties;  immunities 
and  privileges  of  a  free,  single  and  unmarried  woman,"  provided  that 
it  should  not  be  lawful  for  her  to  carry  again  during  the  life  time  of 
the  said  John  Stilley;  and  further  enacting  that  it  should  be  lawful 
for  her  "  to  hold  and  retain  all  such  personal  property  as  is  now  in: 
her  possession,  and  may  ask,  demand,  sue  for  and  recover  and  receive, 
in  her  own  name  and  for  her  own  separate  use,  all  such  yearly  c* 
other  rents,  annuities,  debts  or  sums  of  money  as  may  be  now  due  her 
or  shall  hereafter  grow  and  become  due  to  her,  and  all  other  real  and 
personal  estate  whatsoever  to  which  the  said  Susanna  now  is,  or  here- 
after may  become  entitled  to  in  her  own  right,"  &c.  He  relied  that 
this  act  of  assembly  gave  to  Mrs.  Stilley  full  power  to  execute  the 
deed  in  question  releasing  her  annuity. 

R.  H.  Bayard,  insisted  that  it  gave  no  such  power.  It  is  but  a 
partial  divorce — a  divorce  a  mensa  et  thoro.  In  so  restraining  it  the 
legislature  designed  that  it  should  be  subject  to  all  those  restrictions 
to  which  such  a  limited  divorce  is  liable.  It  is  a  mere  separation  of 
the  parties  and  a  restoration  to  the  wife  of  those  personal  rights  and 
immunities  from  the  control  of  her  husband,  which  would  follow  a 
divorce  of  a  similar  nature  in  the  Ecclesiastical  Courts  of  England; 
and  additionally  the  granting  to  her  certain  personal  property,  and 
the  right  to  recover  certain  rents  or  the  proceeds  of  annuities  as  they 
should  fall  due  for  her  separate  use  and  maintenance  and  in  lieu  of 
alimony.  This  was  necessary.  The  Ecclesiastical  Court,  on  a  decree 
of  separation,  would  also  decree  alimony;  our  legislature,  by  law,, 
enacts  precisely  such  a  separation,  subject  to  all  the  incidents  of  such 
a  divorce,  but  as  there  is  no  court  to  make  the  additional  provision 
for  alimony,  the  act  proceeds  to  vest  in  her  for  her  separate  use  the 
proceeds  of  certain  annuities.  Does  this  enable  her  to  destroy  such 
annuity?  In  the  first  place  it  gives  her  no  power  to  execute  a  deed; 
and  again  she  has  no  power  over  the  annuity  itself,  but  only  over  the 
proceeds.  Suppose  there  are  lands  held  by  her  husband  in  her  right; 
the  act  gives  her  the  rents,  but  does  it  give  her  the  power  to  defeat 
his  interest  as  tenant  by  the  curtesy  initiate?  Can  she  convey  these 
lands  under  the  authority  to  collect  rents? 

The  whole  of  this  act  must  be  taken  together  and  so  construed  as 
to  give  the  whole  meaning.  The  words  of  the  divorce  are  to  be  taken 
in  their  legal  sense,  a  separation  from  bed  and  board,  and  the  words 
which  follow,  that  she  "  shall  enjoy,  have  and  receive  all  the  rights. 


I* 

I  libert 


Bird  vs.  Stilley  and  Rudolph.  341 


liberties,  immunities  and  privileges  of  a  free,  single  and  unmarried 
voman,"  refer  only  to  her  personal  rights  and  immunities  from  her 
husband's  control.  It  is  evident  they  do  not  refer  to  any  rights 
of  property,  otherwise  the  subsequent  specific  and  particular  grant  of 
tlie  right  to  receive  certain  species  of  property  essential  to  her  sup- 
port would  be  useless  and  nugatory.  We  insist  then  that  Mrs.  Stil- 
ley had  not  the  power  to  release  this  annuity,  and  that  her  joining  in 
the  deed  to  Guest  as  it  was  in  point  of  fact,  without  consideration,  is 
also  in  point  of  law,  null  and  void,  as  the  act  of  a  feme  covert. 

J.  A.  Bayard,  for  plaintiff.  The  objection  to  the  evidence  is  a 
technical  one  founded  on  the  supposed  restrictive  force  in  the  words 
""from  bed  and  board."  The  question  is  whether  the  act  so  far  re- 
moves the  disability  of  coverture  as  to  enable  Mrs.  Stilley  to  release 
an  annuity  granted  to  her  in  her  own  name,  and  due  to  her  in  her 
own  right.  The  act  is  in  its  terms  a  divorce  a  mensa  et  thoro,  but 
it  also  grants  to  the  wife  certain  rights  and  privileges  which  it  it  said 
would  not  follow  a  sentence  of  partial  divorce  in  the  Ecclesiastical 
Courts.  It  is  not  denied  that  the  legislature  has  entire  control  of  the 
subject;  that  their  act  is  operative  in  whatever  form  and  to  whatever 
extent  they  choose  to  pass  it.  Call  it,  therefore,  what  you  will,  what- 
ever rights,  powers,  exemptions  or  privileges  they  have  granted  to 
Mrs.  Stilley,  she  possesses,  whether  they  would  follow  a  partial  di- 
vorce in  the  Ecclesiastical  Courts  or  not.  The  inquiry  then  is  only 
what  has  the  legislature  granted?  That  she  shall  enjoy  and  have  all 
the  rights,  liberties  and  immunities  of  a  free,  single  and  unmarried 
woman,  with  but  one  single  exception,  that  of  marrying  again  during 
Stilley's  life.  To  all  other  purposes  she  is  completely  a  divorced  wo- 
man. Now  if  one  of  the  rights  of  a  free  unmarried  woman  is  to  dis- 
pose of  her  own  property,  and  to  release  debts  due  to  her,  the  deft,  in 
this  case  has  that  right,  and  this  is  the  right  she  has  exercised  in 
making  the  deed  now  offered  in  evidence.  And  as  if  to  put  it  beyond 
a  cavil  the  act  goes  on  to  grant,  in  express  terms,  the  right  and  power 
to  sue  for,  collect  and  receive,  in  her  own  name  and  to  her  own  use, 
all  kinds  of  property,  real  or  personal,  to  which  she  then  was  or  might 
become  entitled,  particularly  specifying  annuities  and  rents.  The 
right  to  sue  includes  the  right  to  release. 

The  Court.  This  woman  is  divorced  to  all  purposes,  but  that  of 
marrying  again  during  the  lifetime  of  John  Stilley.  She  had  the 
power  to  release  this  annuity.     Deed  admitted. 

The  plff.  then  proved  a  release  from  Mrs.  Stilley  to  the  holders  of 
two  other  parts  of  the  land  charged;  and,  after  hearing  the  defts/ 
counsel,  the  court  stopped  Wales  from  replying  for  plff. 

They  stated  to  the  jury  that  there  was  one  point  which  settled  the 
case.  This  suit  arose  out  of  a  distress  by  Mrs.  Stilley  for  twenty-nine 
years  arrears  of  an  annuity  or  rent  charge  bequeathed  to  her  by  her 
former  husband,  Thomas  Cartmell,  and  charged  upon  lands  devised 
to  his  four  sons,  William,  Thomas,  George  and  Joseph.  The  plff. 
in  replevin  has  given  in  evidence  a  deed  from  Thomas  Cartmell,  jr. 
and  Susanna  Stilley  (the  deft.)  to  Henry  Guest,  for  one  fourth  of 
the  land  charged  with  this  annuity,  to  wit:  the  share  of  Thomas 
Cartmell,  the  younger,  one  of  the  devisees.      This  deed  bears  date 


342  EoBERs  vs.  LOOAN. 

the  12th  April,  1812;  and,  after  reciting  the  rent  charge  of  $40,  on 
the  whole  tract  it  conveys  the  one-fourth  part  of  that  tract  to  Guest,. 
and  releases  to  him,  generally,  all  rents  issuing  out  of  it,  and  particu- 
larly discharges  and  releases  it  from  the  one  fourth  part  of  this  an- 
nuity. This  release  of  a  part  operates  in  law  as  a  release  of  the 
whole;  and  it  will  riot  be  necessary  for  the  jury  to  examine  the  ques- 
tion which  has  been  principally  considered  in  the  argument,  whether 
Mrs.  Stilley  has  not,  in  point  of  fact,  released  the  whole  of  this  an- 
nuity, for  it  is  a  well  established  principle,  that  if  rent  be  charged 
upon  a  tract  of  land  and  the  grantee  release  any  portion  of  the  land 
charged,  it  is  a  release  of  the  whole;  (5  Bac.  Ah'dg.  694.)  and  on 
this  principle  the  deft,  has  released  the  whole  of  these  lands,  and  the 
plff.  in  replevin  must  have  a  verdict. 

Wales,  Oilpin  and  J.  A.  Bayard,  for  plaintiff. 
R.  H.  Bayard,  for  defendants. 

Quere.  Was  this  a  rent  charge  such  as  could  be  distrained  for  un- 
der the  act  of  assembly?  (8  vol.  218.)  If  so,  all  annuities  charged 
on  land  must  be  the  subject  of  distress  though  no  clause  of  distress 
be  added  to  the  grant.  The  court  was  not  called  on  to  decide  this 
question,  it  was  therefore  not  examined. 


CHRISTIAN  EGBERS  vs.   FRANCIS  LOGAN. 

Quere.     Can  one  tenant  in  common  of  a  vessel  maintain  trover  against  his  co- 
tenant  without  a  destruction  of  the  thing  held  in  common? 
What  is  the  legal  evidence  of  property  in  a  vessel  T 

Case.  Trover  by  one  tenant  in  common  of  a  vessel  against  his 
co-tenant. 

Read,  jr.,  for  plaintiff.  This  was  an  action  of  trover  brought 
under  the  following  circumstances.  Egbers  and  Logan  purchased 
together  a  schooner  called  the  Ohio ;  and  sailed  her  on  their  joint  ac- 
count for  some  time.  Logan  afterwards  entered  the  vessel  at  the  cus- 
tom house  in  his  own  name,  took  out  a  license  as  sole  owner,  and  then 
sold  her  without  the  knowledge  or  consent  of  his  partner  Egbers. 
He  offered  the  license  in  evidence,  and  it  was  objected  to. 

Bayard.  The  license  is  no  evidence  of  ownership.  The  ships 
husband  is  the  proper  person  to  take  out  license  and  give  bond;  nor 
is  it  necessary,  by  any  means,  that  the  names  of  all  the  owners 
should  appear  in  the  license.  The  bill  of  sale  is  the  only  evidence 
of  property.  2  U.  S.  L.  171,  §  4,  of  act  of  1793;  Ahhot  on  Ship. 
Old.  p.  94,  86;  Th.  Raymond  15;  Graves  vs.  Saucer,  2  Johns.  Rep. 
468 ;  St.  John  vs.  Standring;  Roscoe  Ev.  408,  6. 

Read,  jr.  The  evidence  is  offered  to  show,  not  that  the  property 
was  actually  vested  in  the  person  named  in  this  license,  but  to  prove 
the  fact  that  he  took  out  such  a  license;  that  is,  that  he,  in  the  most 
public  manner,  took  exclusive  possession  of  the  vessel  and  claimed 
to  be  the  sole  owner.     It  is  evidence  to  establish  a  conversion. 


Lessee  of  Broom  vs.  Thompson  and  Young.  343 

Hamilton.  The  question  before  the  court  is  one  of  property  as 
well  as  conversion.  Proof  of  one  must  jDrecede  the  other.  Can  the 
property  in  this  vessel  be  proved  by  such  evidence  as  this?  More- 
over the  paper  itself  is  not  authentic. 

It  turned  out  that  the  paper  had  no  seal  to  it,  and  not  being  duly 
authenticated,  it  was  rejected  on  this  ground,  and  the  plff.  suffered 
a  nonsuit. 

The  question  which  he  designed  to  raise  in  this  case  was  whether 
one  tenant  in  common  of  a  vessel  could  be  guilty  of  such  a  conver- 
sion as  that  trover  would  lie  against  him,  without  an  actual  destruc- 
tion of  the  thing.  The  older  cases  are  against  the  action ;  but  a  doubt 
is  expressed  in  2  Johns.  Rep.,  and  very  strong  in  7  Com.  Law  Rep. 
148 ;  Barton  et  al.  vs.  Williams  et  al. 

Read,  jr.,  for  plaintiff. 

J.  A.  Bayard  and  Hamilton,  for  defendant. 


DOE,  on  the  demise  of  ABEAHAM  BROOM  vs.  EOE,  Gas.  Ejector 
and  WILLIAM  THOMPSON  and  THOMAS  YOUNG,  tenants  in 
possession. 

A  devise  to  A,  B  and  C  and  all  the  other  children  of  D  that  shall  hereafter  be 
born  with  directions  that  D  should  keep  the  property  until  the  youngest 
child  be  then  had,  or  shall  hereafter  have,  shall  arrive  at  age,  does  not  give 
D  a  right  to  the  possession  during  the  possibility  of  issue,  but  only  during 
the  minority  of  any  child  actually  in  existence. 

Ejectment.     Case  stated. 

The  case  stated  set  forth;  that  James  Broom,  late  of  Newcastle 
county,  being  seized  of  certain  lands,  &c.,  in  said  county,  duly  made 
and  executed  his  last  will  and  testament,  in  writing,  in  and  by  which, 
among  other  things,  he  devised  and  bequeathed  as  follows : 

"  Also  I  give  and  devise  all  the  residue  and  remainder  of  my  lands, 
houses,  tenements,  rents,  hereditaments  and  real  estate  whatsoever, 
unto  James  Broom,  Hetty  Willis  Broom,  Eliza  Broom,  Harriet  Rum- 
sey  Broom  and  all  the  other  children  of  my  said  son,  Abraham 
Broom,  that  shall  hereafter  be  born,  the  said  four  children  being  the 
son  and  daughters  of  my  said  son  Abraham,  and  their  heirs  forever, 
equally  to  be  divided,  to  be  held  by  them  and  their  heirs  forever,  as 
tenants  in  common.  Also,  all  the  rest  and  residue  of  my  personal 
estate,  I  give  and  devise  to  the  said  James,  Hetty  Willis,  Eliza  and 
Harriet  Eumsey  Broom,  daughters  and  son  of  my  said  son  Abraham, 
and  all  the  future  children  of  my  said  son  Abraham,  forever;  and  it 
is  my  will  and  pleasure,  and  I  do  direct  and  devise,  that  my  said  son 
Abraham  Broom,  take  into  his  possession  all  the  real  and  personal 
estate  devised  to  his  said  children,  and  out  of  the  rents  and  profits 
thereof,  educate  and  maintain  his  said  children,  and  also  any  future 
children  he  may  have,  and  the  same  so  keep  until  the  youngest  child 
he  now  hath,  and  hereafter  shall  have,  shall  arrive  and  come  to  the 
age  of  twenty-one  years.  And  I  do  nominate  and  appoint  the  said 
Abraham  Broom  guardian  to  all  his  children  aforesaid,  begotten  or 
to  be  begotten,  until  they  all,  respectively,  arrive  to  the  age  of  twen- 


344  Lessee  of  Broom  vs.  Thompson  and  Young. 

ty-one  years;  and  if  my  said  son,  Abraham  Broom,  should  die  lea- 
ving my  daughter-in-law,  Elizabeth  Broom,  and  before  the  youngest 
of  said  children  shall  come  of  the  age  aforesaid,  then  it  is  my  will 
and  pleasure,  and  I  do  devise  that  my  said  daughter-in-law,  Eliza- 
beth Broom,  take  into  her  possession  the  real  and  personal  estate 
herein  devised  unto  the  children  of  Abraham  Broom,  and  out  of  the 
rents  and  profits  thereof,  educate  and  maintain  the  said  children  and 
all  future  children  by  him,  until  the  youngest  child  they  now  have 
or  hereafter  shall  have,  respectively,  arrive  to  the  age  of  twenty- 
one  years ;  and  I  do  also,  in  such  case,  nominate  and  appoint  the  said 
Elizabeth  Broom  guardian  to  the  said  children,  until  they  arrive  to 
the  age  of  twenty-one  years/'  James  Broom  left  to  survive  him  the 
said  Abraham  Broom  the  lessee  of  plff.,  and  also  his  wife  Elizabeth 
Broom  and  all  the  said  children  mentioned  in  the  will.  He  has  since 
had  other  children  by  the  said  wife,  isome  of  whom  are  deceased, 
but  all  of  whom  were  or  would  have  been  of  age  at  the  commence- 
ment of  this  suit.  The  said  Elizabeth  is  now  dead.  Defts.  are  in 
possession  under  the  children  of  Abraham  Broom  the  devisees. 

Wales  for  the  plff.  contended  that  the  testator  designed  to  give  to 
Abraham  Broom  a  life  estate  in  the  land;  or  what  would  be  equiva- 
lent thereto,  an  estate  during  the  possibility  of  issue.  When  was  his 
right  to  the  possession  of  these  lands  to  cease?  Not  until  there  was 
an  impossibility  of  his  having  other  children.  He  was  to  hold  it  du- 
ring the  minority  of  all  his  children,  born  or  to  be  bom.  This,  we 
contend,  entitles  him  to  hold  the  possession  still,  he  being  still  in 
full  life,  and  capable  of  having  issue. 

Bayard  for  defts.  In  the  construction  of  a  will  the  court  will 
sometimes  call  to  its  aid  the  situation  of  the  testator's  family  as  illus- 
trating his  intentions.  In  this  case  the  son,  Abraham  Broom,  was 
married  to  a  woman  who  possessed  the  confidence  and  affection  of  the 
father.  This  appears  from  the  face  of  the  will.  In  connection  with 
this  fact  it  may  be  fairly  collected  from  the  will  that  the  testator  did 
not  look  to  the  issue  by  any  other  wife,  but  only  meant  to  provide 
for  the  issue  of  that  wife.  All  the  children  by  this  wife  are  of  age: 
the  father  has  not  married  again;  and  though  it  is  still  possible  for 
him  to  marry  and  to  have  issue,  shall  this  bare  possibility  deprive 
the  real  objects  of  the  testator's  bounty  of  the  possession  of  these 
lands  during  all  the  lifetime  of  their  father  ?  I  say  the  real  objects  of 
his  bounty,  for  the  profits  of  the  land  only  were  devised  to  Abraham 
Broom  for  the  purpose  of  educating  and  maintaining  these  children. 
Additionally,  the  Court  will  have  to  say  whether  any  legal  estate 
whatever  in  the  land  is  given  to  Abraham  Broom  that  will  enable 
him  to  sustain  ejectment. 

Wales  in  reply:  There  is  nothing  in  the  will  to  restrain  the  pos- 
session, of  this  land  in  the  hands  of  Abraham  Broom  to  the  minority 
of  issue  by  his  then  wife.  It  is  a  forced  construction.  Abraham 
Broom  was  probably  a  son  whom,  for  want  of  thrift  or  other  cause, 
James  Broom,  the  father,  could  not  trust  with  an  absolute  devise  of 
his  property  for  life;  he  therefore,  designing  to  give  him  a  support 
in  such  manner  as  that  his  creditors  could  not  take  it  from  him,  de- 
vises the  land  to  the  children,  but  the  profits  to  the  father.    He  could 


H 

H    not 
^V    adm 


Lessee  of  Broom  vs.  Thompson  and  Young.  345 


I 


not  give  him  a  life  estate  without  subjecting  it  to  his  debts.  It  is 
admitted  by  Mr.  Bayard  that  the  words  are  large  enough  to  include 
future  children;  nor  is  there  any  thing  to  exclude  children  by  any 
future  wife;  as  long  therefore  as  there  was  a  possibility  of  issue  by 
any  wife  which  he  had  or  might  have,  Abraham  Broom  was  eaititled 
to  the  possession  of  this  land. 

Harrington,  Judge — 

"  The  question  in  this  case  is  whether  Abraham  Broom  became  en- 
titled under  the  will  of  his  father  to  the  possession  of  the  lands,  &c. 
devised  to  his  children,  and  to  receive  the  rents  and  profits,  during 
the  possibility  of  issue,  i.  e.,  during  life;  or  only  during  the  minority 
of  the  youngest  child  who  should  be  in  actual  existence.  It  is  not 
probable  that  in  making  the  devise  the  contingency  of  Abraham 
Broom  living  until  the  majority  of  his  youngest  child  occurred  to 
the  testator;  the  probabilities  were  all  against  such  an  event  taking 
place;  but  we  are  to  look  into  the  will  and  see  if  the  terms  indicate 
any  plain  intent  of  the  testator  to  give  to  his  son  in  this  indirect  way 
what  would  be  equivalent  to  a  life  estate  in  lands  actually  devised 
to  other  persons.  We  speak  of  intent  because,  if  this  construction  is 
to  prevail,  we  must  go  beyond  the  words  of  the  will  and  adopt  it  as 
necessarily  arising  from  some  design  of  the  testator  manifestly  ap- 
pearing on  the  whole  will.  The  words  of  the  devise  will  not  them- 
selves effect  this  object.  The  lands  are  devised,  not  to  Abraham 
Broom,  but  to  his  children;  to  those  who  were  living  by  name,  and 
to  such  others  as  should  be  born,  generally;  they,  therefore,  and  not 
he,  were  the  especial  objects  of  the  testator's  bounty;  the  possession 
of  the  land  so  devised  was  given  to  him  for  a  specific  purpose,  to  edu- 
cate and  maintain  the  children  until  the  youngest  should  arrive  at 
lawful  age;  a  purpose  which  might  be  accomplished,  and  has  been 
accomplished,  during  the  lifetime  of  Abraham  Broom.  It  is  true 
that  Abraham  Broom  was  benefitted  by  this  devise,  as  it  furnished  a 
fund  for  the  maintenance  and  education  of  children  he  was  otherwise 
bound  to  maintain;  and  this  appears  to  have  been  the  object  of  the 
testator,  to  relieve  him  of  this  burthen;  or,  at  least,  to  give  him  the 
profits  of  his  children's  property  whilst  he  was  at  the  charge  of  edu- 
cating or  maintaining  any  of  them,  and  this  was  reasonable  that  the 
avails  of  the  children's  property  should  be  applied  to  their  support. 
But  beyond  this  no  intention  appears  from  the  will,  and  no  motive  can 
be  inferred,  without  going  into  loose  conjecture,  for  giving  the  rents 
and  profits  of  this  property  to  Abraham  Broom  after  the  charge  of 
his  children  had  ceased,  and  diverting  it  from  the  primary  and  prin- 
cipal objects  of  the  testator's  bounty.  It  may  be  that  he  designed  in 
this  indirect  manner  to  give  a  life  estate  to  his  son  in  the  land  devised 
to  his  grand  children,  but  he  has  not  expressed  that  intention  apart 
from  the  words  of  the  devise,  nor  do  these  words  effect  it.  By  that 
devise  he  is  authorized  to  keep  the  property  "  until  the  youngest 
child  he  now  hath,  and  hereafter  shall  have,  shall  arrive  and  come 
to  the  age  of  twenty-one  years."  It  refers  to  the  minority  of  a  child 
or  children  in  existence  and  not  to  the  possibility  of  such  children 
being  born,  as  is  evident  from  the  expressed  design  of  giving  the  cus- 
tody of  the  property  to  the  father,  that  "  out  of  the  rents  and  profits 

44 


346  Bailey  vs.  McDowell. 

thereof  "  he  should  "  maintain  and  educate  his  said  children,  (i.  e. 
those  then  living  named  in  the  will,)  and  also  any  future  children  he 
may  have."  So  long  as  the  charge  lasted,  the  possession  of  the  pro- 
perty was  to  continue  with  the  father  as  a  means  of  discharging- it ;  and 
it  ceased  on  the  youngest  child  in  existence  arriving  at  twenty-one.*' 

The  other  judges  concurred. 

Judgment  for  the  defendants. 

Wales,  for  plaintiff. 

J.  A.  Bayard,  for  defendants. 


EDWARD  T.  BAILEY  vs.  SAMUEL  McDOWELL. 

Lottery  tickets  are  regarded  as  an  article  of  merchandize,  and  properly  charge- 
able in  a  book  account. 
Cash  not  so  chargeable. 

Case. 

Narr.  Common  counts,  goods  sold,  &c.  &c.  Pleas,  non  assump- 
sit, act  of  limitations  and  set  off.    Eeplications  and  issues. 

This  was  an  action  for  lottery  tickets  sold  to  the  deft,  by  plff.  who 
is  a  lottery  broker.  The  pltf.  produced  and  proved  his  books,  which 
were  objected  to  on  the  ground  that  lottery  tickets  are  not  matters 
properly  chargeable  in  account. 

The  court  required  proof  that  the  lottery  ofl&ce  was  licensed,  and 
also  that  these  lotteries  were  authorized  by  law,  and  these  being 
shown,  a  majority  of  the  court  admitted  the  book  in  evidence.  The 
act  of  assembly  authorizes  the  sale  of  these  tickets,  recognizes  it  "  as 
a  trade  or  business,"  to  be  carried  on  at  a  particular  stand  or  place, 
and  requires  such  stand  to  be  licensed;  the  tickets,  therefore,  are  a 
matter  of  merchandize.  The  book  verified  by  the  oath  of  the  party 
is  evidence  to  prove  the  sale  and  delivery  of  goods,  wares  and  mer- 
chandizes, and  other  matt^irs  properly  chargeable  in  an  account. 
8  Del.  Laws  243.     Dig.  89. 

Judge  Robinson  dissented.  A  lottery  ticket  is  but  a  promise  to 
pay  such  prize  as  may  be  drawn  opposite  to  its  number ;  it  has  no  va- 
lue in  itself,  but  merely  the  evidence  of  value,  and  in  this  respect  it 
may  be  likened  to  cash,  which,  according  to  established  decisions,  is 
not  a  matter  properly  chargeable  in  a  book  account.  Smith  & 
Brown  vs.  McBeath,  administrator  of  Lowber.  Common  Pleas, 
Kent,  November  T.,  1811.  It  is  perhaps  more  like  a  promissory 
note,  the  sale  of  which  could  not  be  established  by  an  entry  in  the 
party's  book  of  accounts.  I  cannot  therefore  regard  lottery  tickets 
as  an  article  of  trade  and  merchandize,  but  would  require  proof  of 
the  actual  sale  and  delivery. 

It  afterwards  appeared  that  the  tickets  sold  were  in  latteries  autho- 
rized by  this  state,  consolidated  or  united  with  lotteries  granted  by 
other  states.  The  court  required  proof  of  the  authority  for  all  the 
lotteries  so  consolidated  together.    If  any  one  of  them  is  not  duly 


I 


Walker  vs.  Hukill.  347 

authorized  by  a  special  grant,  the  tickets  would  all  be  illegal.     The 
plff,  failed  to  produce  this  proof,  and  was  nonsuited. 

Wales,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 


IX  THE  CASE  OF  JOSHUA  T.  SEAL. 

A  petitioner  cannot  have  the  benefit  of  the  insolvent  laws  unless  he  be  actually 

in  prison. 
If  the  sheriff  permit  a  voluntary  escape,  he  cannot  retake  the  prisoner. 

Application  to  be  discharged  under  the  insolvent  laws. 

The  petitioner  set  forth  that  he  was  imprisoned  in  the  common  jail 
of  New-Castle  county,  on  execution  process,  for  debt;  that  he  was 
insolvent;  and  prayed  to  be  discharged  on  assigning  his  property  for 
the  benefit  of  his  creditors.    He  returned  debts  to  a  large  amount. 

When  the  case  came  up  for  hearing  on  the  return  of  the  summons, 
it  appeared  to  the  court  that  the  petitioner  was  at  large,  walking  the 
streets  and  attending  the  court  as  a  spectator.  He  stated  that  he  was 
at  large  by  the  permission  of  the  sheriff.  The  court  refused  to  go 
further  into  the  case,  and  dismissed  the  petition.  Dig.  306.  The 
petitioner  is  not  in  prison,  and  cannot  be  there  again,  legally,  on  this 
process.  The  sheriff  has  permitted  a  voluntary  escape,  and  cannot 
retake  him.  The  chief  justice  mentioned  Croclcer's  case,  in  Kent, 
and  Mr.  Hamilton  that  of  John  Lowher,  in  New-Castle,  where  the 
same  decision  was  made. 

Petition  dismissed. 

J.  A.  Bayard,  for  petitioner. 

Wales  and  Hamilton,  for  creditors. 


HENRY  WALKER,  administrator  of  THOMPSON  WILSON,  vs. 
WILLIAM  HUKILL. 

Lands  cannot  be  inquired  on  before  a  sale  of  the  goods. 
The  inquisition  must  be  objected  to  at  the  first  term. 

Rule  to  show  cause  why  the  sale  of  deft's.  lands  should  not  be  set 
aside. 

The  objection  was  to  the  regularity  of  the  proceedings.  A  fi.  fa. 
had  issued  and  was  returned  levied  on  goods  per  inventory,  and  also 
on  lands:  Inquiry  held  and  not  sufficient.  A  venditioni  exponas 
then  issued  for  the  sale  of  the  goods,  and  afterwards  an  alias  venditi- 
oni exponas,  upon  which  these  lands  were  sold. 

It  was  stated  that  such  had  been  the  practice  in  New-Castle  coun- 
ty ;  but  the  court  said  it  was  different  in  the  other  counties,  and  ought 
to  be  different.    The  land  should  not  be  inquired  on  whilst  the  goods 


348  Allen  &  Co.  vs.  Babcock. 

were  unsold.  The  proceeds  of  the  sales  of  goods  might  save  the  land 
from  condemnation.  Nor  can  any  inconvenience  arise  from  requiring 
the  goods  to  be  sold  before  an  inquisition  is  held  on  the  land,  for  the 
party  can  obtain  his  rule  inquisition  in  vacation  to  be  executed  in 
thirty  days,  (Dig.  210 J  and  the  interval  between  terms  is  generally 
about  five  months.  The  practice  in  this  county  is  dangerous  and 
illegal. 

It  appearing  also  that  this  was  the  first  term  in  which  the  deft,  had 
an  opportunity  of  objecting  to  the  inquiry,  the  rule  was  made  abso- 
lute. And  the  plff.  then  asked  that  the  inquisition  should  also  be  set 
aside,  which  was  granted. 


KICHAED  F.  ALLEN"  &  CO.  vs.  ELIZABETH  BABCOCK. 

A  lunatic  may  defend  by  next  friend  without  having  a  commission. 
Lunacy  may  be  set  up  against  a  note  at  least  as  between  the  original  parties 
or  against  the  first  indorser. 

Rule  to  show  cause  why  a  judgment  should  not  be  set  aside  and 
the  deft,  let  into  a  trial. 

The  rule  in  this  case  was  founded  on  an  affidavit  of  Joseph  K. 
Eyre,  the  brother  and  next  friend  of  the  deft.,  setting  forth:  That 
the  above-mentioned  judgment  was  obtained  at  the  present  term  of 
this  court,  by  default,  in  a  suit  of  foreign  attachment ;  that  the  cause 
of  action  in  said  suit  was  two  supposed  promissory  notes,  for  one 
thousand  dollars  each,  drawn  by  Benjamin  Ashburner  to  the  order  of 
Elizabeth  Babcock,  at  four  months,  and  purporting  to  be  endorsed  by 
her ;  that  at  the  time  of  the  supposed  indorsement,  and  for  a  long  time 
before,  the  said  Elizabeth  Babcock  was,  and  yet  is,  afflicted  with 
mental  derangement,  and  so  far  deprived  of  her  reason  as  to  be  inca- 
pable of  doing  any  business;  that  she  is  now  confined  in  the  Frank- 
ford  hospital;  and  that  the  said  supposed  indorsements  were  made 
without  any  good  or  valuable  consideration  as  far  as  regards  the  said 
Elizabeth  Babcock. 

Bayard  objected  that  the  deft,  or  any  one  for  her  had  no  right  to 
controvert  this  judgment  without  taking  out  a  commission  of  lunacy. 

The  court  said  there  were  two  questions:  whether  a  party  could 
be  permitted  to  stultify  himself,  and  secondly,  whether  a  lunatic  can 
institute  proceedings  by  next  friend.  There  is  some  doubt  whether' 
a  man  can  stultify  himself  by  plea,  but  no  doubt  he  can  do  so  on  evi- 
dence under  the  general  issue.  It  might  be  impolitic  to  permit  the 
defence  of  lunacy  to  an  indorsed  note  after  it  is  put  in  circulation; 
but  this  note  is  in  the  hands  of  the  first  indorser,  and  it  was  his  duty 
to  inquire  not  only  into  the  solvency  of  the  indorser,  but  into  the  lega- 
lity of  the  indorsement.  This  is  a  case  also  of  foreign  attachment, 
where  the  judgment  is  without  appearance,  or,  so  far  as  appears, 
without  notice,  it  is  a  case  therefore  of  a  judgment  without  trial,  and 
the  motion  commends  itself  to  the  favorable  consideration  of  the 
court.  As  to  the  other  question,  a  late  author,  the  only  one  we  have 
had  an  opportunity  of  examining,  lays  it  down  that  a  lunatic  can  sue 


Maberey  &  Pollard  vs.  Shisler.  349 

or  defend  by  next  friend.     Shelf ord  on  Lunacy,  395.    2  Law  Library, 
250. 

Kule  absolute,  (a)  Judgment  to  remain  as  security. 

Booth,  for  defendant. 

J.  A.  Bayard,  for  plaintiff. 


MABEREY  and  POLLARD  vs.  GODFREY  SHISLER,  garnishee  of 
BOWERS  &  GLASBY. 

A  voluntary  assignment  in  contemplation  of  insolvency  and  preferring  cred- 
itors, made  in  Pennsylvania,  will  not  be  sustained  by  our  courts  as  against 
a  subsequent  attachment  by  a  citizen  of  this  state  of  the  insolvent's  effects 
here. 

If  by  such  assignment  a  benefit  is  reserved  to  the  assignor  to  the  prejudice  of 
his  creditors,  it  vitiates  the  deed. 

Attachment  case.     Case  stated. 

Bowers  &  Glasby,  merchants  of  the  city  of  Philadelphia,  being  in 
insolvent  circumstances,  and  in  contemplation  of  insolvency,  exe- 
cuted an  assignment  of  all  their  goods  and  chattels,  rights  and  cre- 
dits, to  John  B.  Stryker,  of  said  city,  for  his  sole  benefit,  to  secure 
the  payment  of  the  sum  of  $20,471  71  due  and  owing  from  the  said 
Bowers  &  Glasby  to  the  said  Stryker;  with  power  to  sell,  dispose  of, 
assign,  transfer-,  &c.,  sue  for,  collect,  &c. ;  and  as  soon  as  sufficient 
money  should  be  collected  or  realized  from  the  said  sales,  &c.  to  pay 
the  said  debt  and  all  charges,  and  also  a  commission  of  five  per  cent, 
for  collection,  the  balance,  if  any,  should  revert  and  become  payable 
to  the  said  assignors,  or  be  applied  in  any  other  manner  they  might 
direct.  This  assignment  was  dated  28th  January,  1832,  and  at  that 
time  Bowers  &  Glasby  were  indebted  to  Maberry  &  Pollard,  mer- 
chants of  the  same  city,  in  the  sum  of  $ .     Maberry  &  Pollard 

prosecuted  a  writ  of  foreign  attachment  out  of  this  court  against  Bow- 
ers and  Glasby,  returnable  to  the  May  term,  1832,  under  which  writ 
the  sheriff  attached  a  debt  due  from  Godfrey  Shisler,  a  citizen  of 
this  state,  to  tbe  said  Bowers  and  Glasby.  The  attachment  was  laid 
in  the  hands  of  Shisler  on  the  third  of  February,  A.  D.  1832. 

The  question  was  between  the  attaching  creditors  and  the  assignee, 
Stryker. 

Gilpin,  for  plff.,  contended — That  this  was  not  such  an  assign- 
ment as  our  courts  would  recognize  and  enforce;  an  assignment  pre- 
ferring creditors  which  by  our  law  was  regarded  as  not  only  fraudu- 
lent but  criminal.  Dig.  139.  Precisely  such  an  assignment,  if 
executed  in  this  state,  woiTld  be  the  subject  of  an  indictment.  Shall 
then  our  courts  lend  their  aid  to  execute  and  enforce  an  assignment 
which  they  would  punish  their  own  citizens  criminally  for  making? 

(a)  On  a  trial  at  the  following  term,  when  the  jury  returned  into  the 
box,  the  plff.'s  were  called  and  refused  to  answer.  The  court  doubted 
whether,  standing  as  this  case  did  on  the  record,  the  plff.  could  choose  to 
be  non  pros'd. ;  they  therefore  took  the  verdict  for  the  deft,  and  laid  a 
rule  to  show  cause  why  this  verdict  should  not  be  set  aside  and  judgment 
of  non  pros,  entered.    This  rule  was  made  absolute  without  argument. 

Judgment  of  non  pros. 


350  Mabebry  &  PoLLAHD  VS.  Shisler. 

I  need  not  be  told  that  such  an  assignment  is  no  offence  against  our 
laws  because  it  is  executed  out  of  our  jurisdiction;  the  party  comes 
here  to  enforce  it;  he  asks  the  aid  of  our  law  to  carry  out  a  transac- 
tion which  with  us  is  deemed  fraudulent  and  criminal ;  and  he  neces- 
sarily discloses  the  nature  of  the  transaction  in  calling  upon  our  courts 
to  aid  him.  If  an  assignment  out  of  our  state  be  no  offence  against 
the  laws  of  our  state,  so  also  such  an  assignment  has  no  operation 
within  our  state,  except  by  courtesy;  a  courtesy  which  will  not  be 
extended  to  a  transaction  not  only  against  the  general  policy  of  our 
own  law,  but  against  the  express  letter  of  our  statute  law.  As  well 
might  I  be  told  that  bigamy  or  polygamy  would  be  tolerated  here, 
and  legalized  by  our  courts,  provided  such  marriages  were  contracted 
in  a  kingdom  or  country  where  it  is  lawful  to  have  more  wives  than 
one.  The  contract  is  against  our  laws,  and  that  is  a  suflScient  reason 
for  refusing  in  any  way  to  give  it  any  operation  within  our  borders. 
But  this  assignment  is  fraudulent  on  the  face  of  it.  It  not  only  pre- 
fers creditors,  but  it  actually  gives  all  the  property  of  Bowers  and 
Glasby  to  one  creditor  for  his  sole  benefit.  It  is  moreover  a  volun- 
tary assignment,  not  made  in  the  course  of  a  judicial  proceeding 
under  the  insolvent  laws,  and  is  not,  so  far  as  we  know,  such  an  as- 
signment as  would  be  sustained  by  the  court  and  under  the  laws  of 
Pennsylvania.  Their  decisions  as  to  the  effect  of  a  discharge  under 
their  insolvent  laws  do  not  apply  to  this  case.  I  submit,  then,  that 
the  debt  due  from  Shisler,  being  within  this  state  and  subject  to  the 
laws  of  this  state,  was  not  transferred  by  this  fraudulent  and  illegal 
assignment  to  Stryker,  and  that  the  same  is  now  subject  to  the  at- 
tachment of  the  plff.     13  Mass.  R.  146. 

Hamilton  and  Bayard,  contra.  There  is  no  doctrine  in  the  law 
better  settled  than  that  the  lex  loci  contractus  shall  govern ;  the  law 
of  the  place  in  which  the  contract  is  made,  and  not  that  of  the  place 
where  it  is  to  be  enforced,  shall  bind  the  parties,  unless  the  contract 
itself  has  a  special  reference  to  the  latter  place.  We  are  not  prepared 
to  say  that  an  assignment  or  transfer  of  land  here  by  a  contract  or 
instrument  executed  out  of  the  state  would  be  carried  into  effect  here 
if  made  either  against  the  letter  or  the  general  policy  of  our  laws; 
but  there  is  a  manifest  distinction  between  the"  two  cases.  Personal 
property  has  no  situs,  no  location ;  it  always  follows  the  person,  and 
is  therefore  immediately  affected  by  his  personal  contracts,  wherever 
made.  Here  the  parties  live  in  Pennsylvania;  the  contract  was 
made  in  Pennsylvania;  the  assignment  executed  there;  it  is  a  Penn- 
sylvania transaction  altogether.  By  the  law  of  that  state  such  an  as- 
signment is  valid;  by  their  law  it  passies  all  the  goods  and  chattels, 
rights  and  credits  of  the  assignor ;  and  if  one  of  these  rights  happens 
to  be  a  debt  due  from  a  citizen  of  our  own  state,  our  courts  will 
recognize  the  validity  of  such  an  assignment  in  the  transfer  of  such 
a  debt.  If  good  there,  it  is  good  everywhere.  Does  our  act  of 
assembly  prohibiting  such  assignments  as  prefer  creditors  affect  the 
question  ?  It  is  made  in  reference  to  assignments  here ;  it  is  not  pos- 
sible that  it  can  extend  to  a  transaction  happening  out  of  the  state; 
that  it  can  make  an  act  criminal  in  Pennsylvania  which  is  legal 
there.  Such  an  assignment  cannot  be  a  breach  of  our  laws ;  and  if  it 
is  in  pursuance  of  their  laws  and  valid  there  it  ought  to  be  sustained 


Maberry  &  Pollard  vs.  Shisler.  351 

wherever  the  parties  go  to  have  it  executed.  There  is  but  one  ex- 
ception to  this  rule:  where  the  party  goes  out  of  the  state  with  a 
view  to  evade  the  law  and  makes  a  contract  for  this  purpose.  Such 
a  contract  would  be  in  fraudem  legis,  and  ought  not  to  be  sustained. 

Curia  advisare  vult. 

Mr.  Justice  Robinson  delivered  the  opinion  of  the  court. 

Robinson,  Justice.  On  the  28th  of  January,  1832,  John  Bowers 
and  Alban  H.  Glasby  and  John  B.  Striker,  all  of  the  state  of  Penn- 
sylvania, executed  a  deed  called  an  indenture,  John  Bowers  and  Al- 
ban H.  Glasby  of  the  one  part,  and  John  B.  Striker  of  the  other  part, 
by  which  Bowers  and  Glasby  (after  reciting  that  by  their  account  of 
the  same  date  of  the  deed  they  stood  justly  indebted  to  Striker  in 
$20,471  71,  and  that,  in  order  to  secure  payment  of  a  part  thereof, 
they  had  executed  to  him  two  mortgages,  with  bonds  and  warrants  of 
attorney,  for  $3,700,  and  to  secure  the  balance  of  $16,771  71,  exe- 
cuted a  bond  payable  on  demand,  on  which  judgment  had  been  entered 
and  an  execution  issued,  and  that  it  was  doubtful  whether  the 
mortgaged  premises  and  the  goods,  wares  and  merchandizes  in  their 
possession  were  adequate  to  pay  the  full  demand  owing  to  Striker, 
or  that  if  the  same  should  be  exposed  to  sale  by  the  sheriff,  it  would 
be  attended  not  only  with  additional  expenses,  but  also  probably, 
with  a  sacrifice  of  the  property)  bargain,  sell  and  convey  to  the  said 
Striker  all  the  goods,  wares  and  merchandizes  in  their  store  and  pos- 
session, or  elsewhere,  and  all  debts  due  and  owing  and  to  become 
due  to  them,  by  bond,  bills,  notes,  book  accounts,  or  othejrwise,  as 
also  the  debts  due  and  owing  and  to  become  due  to  them  individually ; 
and  they  agree  that  Striker  shall  hold  all  the  property  granted,  bar- 
gained and  sold  to  his  only  use  forever,  being  then  put  into  the  abso- 
lute possession  of  the  same  by  the  delivery  of  one  piece  of  broad 
cloth  in  the  name  of  the  whole;  and  they  give  and  grant  to  Striker 
full  power  and  authority  to  dispose  of  all  the  goods,  wares  and  mer- 
chandizes, at  public  or  private  sale,  as  soon  as  he  might  think  proper, 
an  inventory  having  been  taken  thereof;  and  they  constitute  and  ap- 
point Striker  their  attorney  to  demand,  sue  for  and  receive  all  sums 
of  money  due  and  owing,  and  to  become  due,  and  on  receipt  thereof, 
sufficient  discharges  to  give,  and  to  compound  and  agree,  by  taking 
les6  than  the  whole  in  any  case,  as  their  said  attorney  might  think 
proper;  and  it  was  agreed  that  so  soon  as  a  sufficient  sum  of  money 
should  be  realized  from  the  sale  of  the  effects  or  the  collection  of  the 
debts  or  moneys  to  enable  Striker  to  liquidate  the  debt  owing  to  him 
as  aforesaid  and  pay  all  charges  attending  the  disposal  of  the  effects 
and  the  collection  of  the  debts,  and  also  a  commission  of  five  per  cent, 
on  the  amount  realized,  then  the  balance,  if  any,  should  revert  and 
become  payable  to  the  said  Bowers  and  Glasby,  or  should  be  applied 
in  any  other  manner  they  might  thereafter  direct,  provided  the  same 
should  not  be  inconsistent  with  the  interest  of  the  said  Striker,  or 
against  the  spirit  and  intention  of  the  indenture,  it  being  agreed  that 
Striker  should  be  entitled  to  receive  interest  on  the  whole  of  the  debt 
due  and  owing  to  him  from  the  date  thereof,  until  his  debt  was  liqui- 
dated. On  the  third  of  February,  1832,  six  days  after  this  deed 
was  executed,  Maberry  and  Pollard,  creditors  of  Bowers  &  Glasby, 


352  Maberry  &  Pollard  vs.  Shisler. 

and  also  citizens  of  Pennsylvania,  sued  out  the  above  writ  of  attach- 
ment, and  thereupon  Godfrey  Shisler,  a  debtor  of  Bowers  &  Glasby, 
was  summoned  as  a  garnishee,  who  pleaded  nulla  bona.  Upon  these 
facts,  it  has  been  agreed  by  the  counsel  for  the  plffs.  and  for  the  gar- 
nishee, that  if  the  court  shall  decide  that  Striker  is  not  entitled  to 
collect  and  receive  the  debt  due  from  Shisler,  the  garnishee,  by  vir- 
tue of  the  aforesaid  deed,  then  judgment  shall  be  rendered  against 
said  garnishee;  but  if  the  court  shall  decide  that  Striker  is  entitled  as 
aforesaid  by  virtue  of  said  deed,  then  judgment  shall  be  rendered 
in  favor  of  Shisler,  the  said  garnishee.  The  counsel  for  the  attach- 
ing creditors  insisted,  that  as  the  deed  preferred  Striker  to  all  other 
creditors,  that  it  was  void,  by  the  act  passed  by  the  legislature  of 
this  state,  in  1826,  for  the  punishment  of  certain  crimes  and  misde- 
meanors, in  which  is  contained  the  following  provision,  relied  on  to 
support  the  objection :  "  If  any  person  or  persons,  in  contemplation 
of  insolvency,  shall  make  an  assignment  of  their  estate  or  effects,  for 
the  benefit  of  their  creditors,  and  in  and  by  such  assignment  shall 
prefer  any  one  or  more  creditors,  that  every  such  assignment  shall  be 
deemed  fraudulent  and  absolutely  void,  and  the  estate,  goods,  chat- 
tels, or  effects,  contained  in  such  assignment  shall  be  liable  to  be 
taken  in  execution  or  attached  for  the  payment  of  the  debts  of  such 
assignors,  in  the  same  manner  and  to  as  full  an  effect  as  if  no  such 
assignment  had  been  made."  This  contract  was  made  in  Pennsylva- 
nia, and  between  citizens  of  that  state,  who  entered  into  it  expecting 
it  to  stand  or  fall  according  to  the  laws  there.  Generally  speaking, 
the  validity  of  a  contract  is  to  be  decided  by  the  laws  of  the  place 
where  it  is  made,  but  to  this  rule  there  are  said  to  be  exceptions.  No 
people  are  bound  to  enforce  in  their  courts  of  justice  any  contract 
which  is  injurious  to  their  public  rights,  their  morals,  their  policy, 
or  that  violates  a  public  law.  We  do  not  consider  the  contract  in 
this  case  as  liable  to  any  portion  of  these  exceptions.  Chief  Justice 
Ellenborough,  in  5  East.  Rep.  131,  is  reported  to  have  said  that 
"We  always  import  together  with  their  persons,  the  existing  rela- 
tions of  foreigners  ds  between  themselves,  according  to  the  laws  of 
their  respective  countries,  except  indeed  when  those  laws  clash  with 
the  rights  of  our  own  subjects  here,  and  one  or  the  other  of  the  laws 
must  necessarily  give  way,  in  which  case  our  own  is  entitled  to  the 
preference."  One  of  the  strongest  cases  to  illustrate  this  rule  is  that 
in  relation  to  the  interest  of  money  arising  on  contracts  made  in 
foreign  countries.  Thus  in  England  the  statue  of  Ann  prohibited 
in  positive  terms  taking  more  than  five  per  cent,  for  the  loan  of  money, 
and  although  it  has  been  held  that  a  breach  of  that  law  subjected 
the  offender  of  it  (when  the  offence  was  completed  in  England)  to  an 
indictment,  yet  it  has  been  decided  there  that  where  interest  arises 
by  force  of  a  contract  made  in  America,  agreeable  to  the  laws  here, 
the  courts  in  England  have  been  obliged  to  follow  the  American  law 
on  the  subject.  So  it  has  been  decided  there  that  though  the  debt 
was  contracted  in  England,  but  the  bond  taken  for  it  in  Ireland,  to 
be  paid  at  seven  per  cent,  interest,  it  should  carry  Irish  interest. 
This  rule,  however,  is  not  adopted  because  the  laws  of  the  country 
where  the  contract  is  made  have  any  binding  force  beyond  the  limits 


I 


IklABERRY  &  Pollard  vs.  Shisler.  353 

of  such  country,  but  their  authority  in  other  states  is  admitted  from 
policy  and  comity.     The  judges  in  Pennsylvania  recognize  the  same 
influence  of  foreign  laws  in  relation  to  contracts  made  in  foreign 
states,  as  will  be  found  in  4  Dallas,  325,  419,  and  it  has  been  there 
decided  that  a  debtor  in  failing  circumstances  may,  by  an  assignment 
of  his  estate,  prefer  one  or  more  creditors,  provided  that  in  all  other 
respects  it  be  untainted  with  fraud.    1  Binney,  502  .     As  the  deed  in 
question  was  made  in  Pennsylvania,  between  citizens  of  that  state,  we 
cannot  decide  that  it  is  fraudulent  and  void,  because  it  has  preferred 
one  creditor,  and  thereby  seems  contrary  to  the  recited  act  of  as- 
sembly.     It   would   unquestionably  be   otherwise   if   it   should   be 
brought  forward  against  any  of  our  citizens  as  creditors,  claiming  by 
attachment  or  otherwise.      There  is  an  objection  to  this  deed,  which 
has  not  been  noticed  in  the  argument,  although  it  appears  on  the  face 
of  the  deed  itself.     After  having  provided  for  the  payment  of  only 
one  creditor,  it  is  agreed  "  that  the  balance,  if  any,  shall  revert  and 
become  payable  to  Bowers  and  Glasby,  the  assignors,  or  applied  in 
any  other  manner  they  might  thereafter  direct."      The  same  rule 
which  is  applied  to  the  validity  of  contracts  applies  vice  versa  to  their 
invalidity;  they  are  generally  held  void  and  illegal  everywhere,  if  so 
Avhere  made.      Those  provisions  of  the  thirteenth  of  Elizabeth,  chap. 
5th,  that  have  any  bearing  on  cases  of  this  kind,  have  been  admitted 
as  declaratory  of  the  common  law,  and  held  in  force  in  Pennsylvania, 
and  most,  if  not  all,  the  original  states  of  our  union.     By  those  pro- 
visions, all  conveyances  to  delay,  hinder  or  defraud  creditors  of  their 
remedies,  are  declared  to  be  clearly  and  utterly  void,  frustrate,  and 
of  none  effect,  any  pretence,  color,  feigned  consideration,  expressing 
of  use,  or  any  other  matter  or  thing  to  the  contrary  notwithstanding. 
It  is  manifest  from  the  recital  in  the  deed,  that  Bowers  and  Glasby, 
at  the  time  of  executing  it,  contemplated  an  approaching  insolvency, 
because  it  is  there  admitted,  that  "it  was  doubtful  whether  the  mort- 
gaged premises,  and  the  goods,  wares  and  merchandizes  in  their  pos- 
session were  adequate  to  pay  the  full  demand  owing  to  Striker; "  and 
yet  they,  through  the  agency  of  their  greatly  favored  creditor,  under- 
take to  deprive  their  other  creditors  of  what  should  have  been  assign- 
ed to  them,  by  securing  to  themselves  the  balance.      Suppose  this 
court  were  to  decide  in  favor  of  the  deed  and  dismiss  the  attachment, 
and  there  should  remain  a  balance.     To  whom  would  Striker  pay  it? 
Certainly  to  Bowers  and  Glasby;  or  he  would  apply  it  to  some  of 
their  relations,  perhaps,  as  they  might  direct  and  would  have  the 
right  to  do  according  to  the  deed.      His  motive  to  perform  what 
would  be  a  duty  under  the  deed,  as  a  legal  obligation,  would  be  ex- 
cited by  feelings  of  gratitude.     That  a  debtor  in  such  an  assignment 
cannot  make  a  reservation,  at  the  expense  of  his  creditors,  of  any  part 
of  his  property  or  income,  for  his  own  benefit,  is  clearly  established 
by  numerous  authorities.      Chancellor  Kent  says,  that  "it  has  been 
supposed  that  such  a  reservation,  if  not  made  intentionally  to  delay, 
hinder  and  defraud  creditors,  would  not  affect  the  validity  of  the 
residue,  or  main  purpose  of  the  assignment,  and  that  if  the  part  of 
the  estate  assigned  to  the  creditors  should  prove  insufficient,  they 
might  resort  to  the  part  reserved  by  the  aid  of  a  court  of  equity;  but 
later  authorities  have  given  to  such  reservations  the  more  decided 
effect  of  rendering  fraudulent  and  void  the  whole  assignment;  and  no 

45 


364  Maberey  &  PoLLABD  VS.  Shisler. 

favored  creditor  or  creditors  can  be  permitted  to  avail  himself  of  any 
advantage  over  other  creditors  under  an  assignment  which  by  means 
of  such  a  reservation  is  fraudulent  on  its  face."  From  these  views 
of  this  case  we  decide  that  the  deed  in  question  is  in  law  fraudulent 
and  void,  and  that  Striker  is  not  entitled  to  collect  and  receive  the 
debt  due  from  Shisler,  the  garnishee,  by  virtue  of  the  said  deed,  and 
therefore  render  judgment  against  said  garnishee.  Story's  Conflict 
of  Laws,  201,  203 ;  3d  Bacon,  AM.  hy  Wilson,  294,  308 ;  2  Chitty,  ch. 
i49,  note  (f);  1  Vez.  sen.  428;  2  Atk.  382;  2  Kent  Com.  457,  535;  1 
Hopkins'  Ch.  Rep.  373,  <S;c.;  6  Binney  Rep.  338;  14  John.  Rep. 
465. 

Judgment  for  plffs.     (a) 

Oilpin,  for  plaintiffs. 

Hamilton  and  J.  A.  Bayard,  for  Stryker. 

Note  hy  the  reporter,  (a)  A  contract  shall  be  governed  by  the  law  of 
the  place  where  it  is  made;  if  good  there,  it  is  good  everywhere;  and  if 
illegal  or  void  there,  it  cannot  have  effect  anywhere.  Within  themselves, 
however,  contracts  have  no  force  or  efficacy  out  of  the  jurisdiction  of  the 
place  where  they  are  made ;  nor  can  the  law  of  that  place  give  them  effect 
elsewhere :  hence,  whatever  force  is  given  to  them  in  the  courts  of  other 
coimtries  arises  from  comity,  and  is  not  a  matter  of  right.  Every  nation 
may  place  what  limitation  it  pleases  on  the  exercise  of  this  comity,  and 
it  is  by  most  nations  held  a  reasonable  limitation  to  restrict  its  exercise 
to  cases  where  it  can  be  extended  without  prejudice  to  its  own  citizens. 
The  rule  is  stated  by  Judge  Story,  from  the  English  authorities,  thus  — 
"  The  effects  of  a  contract  entered  into  at  any  place  will  be  allowed  ac- 
cording to  the  law  of  that  place,  in  other  coimtries,  if  no  inconvenience 
will  result  therefrom  to  the  citizens  of  that  other  country,  with  respect 
to  the  right  which  they  demand."    (Story's  Com.  820.J 

It  is  also  true  that  personal  property  has  no  situs,  but  is  by  a  legal  fic- 
tion deemed  to  be  with  the  owner,  and  affected  by  his  contracts  wherever 
it  may  in  fact  be  found.  Yet  this  is  so  only  by  a  legal  fiction,  which 
yields  whenever  it  is  necessary  for  the  purposes  of  justice  to  regard  the 
actual  location  of  the  property.  This  general  rule,  therefore,  is  subject, 
in  the  present  case,  to  precisely  the  same  modification  with  the  other: 
*'  if  no  inconvenience  will  result  to  the  citizens  of  this  state  with  respect 
to  rights  which  they  may  demand,"  the  property  here  in  controversy 
ought  to  be  regarded  according  to  the  legal  fiction,  as  being  attached  to 
the  domicil  of  Bowers  &  Glasby;  but  otherwise  it  should  be  treated  ac- 
cording to  its  real  location  in  this  state.  The  reason  is  the  same  as  in 
the  former  case.  The  laws  of  Pennsylvania,  under  which  the  assignee  of 
Bowers  and  Glasby  claims  this  property,  can  have  no  operation  here ;  the 
judgments  or  decrees  of  their  courts  cannot  reach  it.  On  the  contrary, 
it  is  entirely  under  the  jurisdiction,  and  subject  to  the  disposition  and 
control  of  our  laws  and  tribunals.  When  a  foreigner  sends  his  property 
from  the  place  of  his  own  residence,  he  voluntarily  subjects  it  to  the  laws 
of  the  country  where  he  so  places  it ;  and  by  his  own  consent,  as  well  as 
on  other  principles,  it  becomes  peculiarly  subject  to  that  jurisdiction. 
What  the  law  protects  it  has  the  right  to  regulate ;  and  in  so  regulating 
it,  if  our  courts  recognize  and  give  effect  either  to  the  lex  loci  contractus 
or  the  lex  domicilii,  it  is  on  a  principle  of  comity,  and  subject  to  such 
restrictions  as  the  rights  and  interests  of  o\ir  own  citizens  require. 


Crawford  et  al.  vs.  Short  et  al.  355 

ALEXANDER  CRAWFORD  et   al.   vs.   ANX   SHORT,   JAMES 

SHORT  et.  al. 

Sec.  3  of  ch.  106,  8  v.  D.  L.  92  is  constitutional. 

An  appeal  from  the  orphans'  court  cannot  be  heard  without  a  statement  of  the 

points  decided. 
It  is  the  duty  of  the  party  to  apply  for  such  statement. 
Effect  of  the  dismissal  of  an  appeal  without  prejudice. 
The  superior  court  cannot  send  a  mandamus  to  the  orphans'  court  to  compel 

the  signing  of  a  bill  of  exceptions. 

Appeal  from  the  orphans'  court  of  Newcastle  county. 

Record.  In  the  case  of  the  return  of  partition  and  valuation  of  the 
real  estate  of  Abraham  Short,  deceased.     July  term,  1830.      Decree 

The  effect  of  assignments  of  property  by  operation  of  law,  as  in  trans- 
fers under  bankrupt  and  insolvent  laws,  has  been  much  discussed  in  the 
courts  of  England  and  of  this  country,  and  the  result  seems  to  be  a  dif- 
ferent doctrine  on  this  subject  in  the  two  countries.  In  England  it  is 
held  that  assignments  under  the  bankrupt  laws  transfer  moveable  prop- 
erty, wherever  it  may  be  situate,  applying  the  principle  that  personal 
property  has  no  locality,  that  the  assignment  under  the  bankrupt  laws 
transfers  all  the  bankrupt's  title  as  fully  as  he  might  do  by  a  voluntary 
assignment  or  sale,  and  that  the  assignees  become  the  lawful  owners  of 
it,  to  be  administered  for  the  benefit  of  the  creditors.  And  they  give  the 
same  effect  to  assignments  made  under  the  bankrupt  laws  of  other  coun- 
tries, without  any  distinction  as  to  citizens  and  foreigners.  Thus  an  at- 
tachment of  the  property  of  a  foreign  bankrupt  by  an  English  creditor, 
after  bankruptcy,  will  not  be  sustained  against  the  assignment,  with  or 
without  notice.  (Story's  Com.  345. j  And  this  principle  is  not  without 
support  in  this  country,  (Goodwin  vs.  Jones,  3  Mass.  R.  517;  Holmes  vs. 
Bemsen,  4  John  C.  R.  460^  but  the  weight  of  authority  is  the  other  way. 
And  although  it  was  sustained  by  Chancellor  Kent,  in  the  case  of  Holmes 
vs.  Remsen,  he  admits,  in  the  second  volume  of  his  Commentaries,  page 
406,  that  "  it  may  now  be  considered  as  a  part  of  the  settled  jurisprudence 
of  this  country,  that  personal  property  as  against  creditors  has  locality, 
and  the  lex  loci  rei  sitae  prevails  over  the  law  of  the  domicil  with  regard 
to  the  rule  of  preferences  in  the  case  of  insolvents'  estates."  A  prior  as- 
signment in  bankruptcy,  under  a  foreign  law,  will  not  be  permitted  to 
prevail  against  a  subsequent  attachment  by  an  American  creditor  of  the 
bankrupt's  effects  found  here ;  and  our  courts  will  not  subject  our  citizens 
to  the  inconvenience  of  seeking  their  dividends  abroad  when  they  have 
the  means  to  satisfy  them  under  their  own  control.  It  was  so  decided  in 
Maryland  in  Bnrk  vs.  McLean,  1  Harr.  &  McHenry,  236,  and  Wallace  vs. 
Patterson,  2  Harr.  &  McH.  463;  in  Pennsylvania,  in  Milne  vs.  Moreton, 
6.  Binn  Rep.  353,  and  Mulliken  vs.  Aughinhaugh,  1  Penn.  Rep.  117;  in 
North  Carolina,  (2  Haywood's  Rep.  24 ;j  South  Carolina,  (^  McCord's 
Rep.  510 ;j  Connecticut,  (Birhy's  Rep.  SIS;)  and  also  in  the  supreme 
court  of  Jjie  United  States,  in  Ogden  vs.  Saunders,  12  Wheaton  R.  213. 
The  case  of  Holmes  vs.  Remsen  has  also  been  ably  questioned  in  the  su- 
preme court  of  ^ew  York,  in  a  case  at  law  between  the  same  parties. 
20  Johns.  Rep.  254. 

The  law,  therefore,  is  fully  settled,  in  this  country,  against  the  ad- 
mitted doctrine  of  the  English  courts,  that  an  assignment  under  the 
bankrupt  or  insolvent  laws  of  a  foreign  country  will  not  transfer  the 
bankrupt's  property,  including  choses  in  action,  in  this  country  so  as  to 
prevent  a  subsequent  attachment  by  the  bankrupt's  creditors  here. 


356  Crawford  et  al.  vs.  Short  et  al. 

in  relation  to  costs.  Appeal  prayed  and  granted.  35th  September, 
1832.  Decree  approving  and  confirming  the  return  of  freeholders. 
Appeal  prayed  and  granted.  In  superior  court,  November  term, 
1832.     Appeal  from  the  aforesaid  decrees  received  and  filed.     "And 

But  in  the  case  before  the  court  both  the  attaching  creditors  and  the 
assicmees  were  citizens  of  Pennsylvania.  It  was  altogether  a  transaction 
between  foreigners.  Supposing  such  an  assignment  to  be  valid  according 
to  the  laws  of  that  state,  and  that  its  effect  there  would  be  to  transfer  all 
the  property  of  Bowers  &  Glasby  to  Strjker,  the  question  would  arise 
whether  there  was  any  reason  why  our  courts  should  not,  in  the  usual 
comity  of  nations,  give  it  the  same  effect  here  as  between  citizens  of 
that  state.  This  point  was  not  decided,  it  being  rendered  unnecessary  by 
the  terms  of  the  assignment;  and  it  may  be  considered  as  still  open  and 
worthy  of  grave  consideration,  notwithstanding  the  intimation  which 
the  court  gave  of  the  inclination  of  their  opinion. 

A  distinction  has  been  taken  in  some  of  the  cases  on  this  subject  be- 
tv/een  voluntary  conveyances  and  conveyances  in  invitum,  by  the  mere 
operation  of  law,  as  in  cases  of  bankruptcy  and  insolvency.  (Kaims  on 
Equity,  h.  3  ch.  8,  s.  6;  Story  6  Com.  346. j  But  it  does  not  appear  to  be 
established.  Chancellor  Kent,  in  Holmes  vs.  Remsen,  thought  himself 
bound  to  give  effect  to  the  assiginnent,  "  because  it  is  equivalent  to  a  vol- 
untary act  of  the  party  over  his  own  property." — "  Every  man's  assent  is 
presumed  to  a  statute."  And  Chief  Justice  Parsons,  in  Goodwin  vs. 
Jones,  "  considered  the  assignment  under  the  bankrupt  laws  as  the  party's 
own  act,  since  it  was  in  the  execution  of  laws  by  which  he  was  bound, 
and  since  he  voluntarily  committed  the  act  which  authorized  the  making 
it."  The  distinction  is  not  between  a  bona  fide  sale  for  a  valuable  consid- 
eration (which  would  certainly  be  good  against  a  subsequent  attaching 
creditor)  and  a  statiitory  transfer;  but  it  is  between  a  voluntary  assign- 
ment in  contemplation  of  insolvency  and  a  compulsory  assignment  under 
the  operation  of  the  insolvent  laws;  and  no  such  distinction  appears  to 
be  sustainable  on  principle  or  sustained  by  authority.  On  the  contrary, 
the  supreme  court  of  Massachusetts  decided,  in  Ingraham  vs.  Geyer,  f'13 
Mass.  Rep.  146 )  that  a  voluntary  assignment  by  a  debtor  of  all  his  prop- 
erty, made  in  Pennsylvania,  for  the  benefit  of  creditors  generally,  should 
not  prevail  over  a  subsequent  attachment,  because  such  assignment 
would  be  void  by  the  laws  of  Massachusetts,  if  made  there,  as  being  in 
fraud  of  creditors.  And  Fox  vs.  Adams,  5  Greenleaf's  Rep.  245;  Oliveir 
vs.  Townes,  14  Martin's  Louis.  Rep.  93;  and  Nori'is  vs.  Mumford,  4 
Martin's  Louis,  R.  20,  are  to  the  same  effect. 

The  principal  case  was  much  stronger.  It  was  not  the  case  of  an  as- 
signment for  the  benefit  of  other  creditors  than  a  single  preferred  one; 
and  any  assignment  preferring  creditors  is,  by  the  express  terms  of  our 
act  of  assembly,  declared  to  be  fraudulent  and  void,  and  the  property  in- 
tended to  be  transferred  thereby  remains  liable  to  be  taken  in  execution 
or  attached  for  the  pajinent  of  the  assignor's  debts,  in  the  same  manner 
as  if  no  such  assignment  had  been  made.  (Dig.  140.^  Can  our  courts  in 
any  manner  give  effect  to  such  an  assignment  ?  It  is  not  pretended  that 
our  laws  can  make  this  transaction  illegal  where  it  was  executed,  if  by 
the  laws  of  that  place  it  is  authorized ;  but  if  the  aid  of  our  courts  is  in- 
voked to  give  it  effect  within  our  jurisdiction  and  over  property  which  it 
cannot  reach  unless  our  courts  recognize  its  validity  here,  could  they  da 
so  consistently-  with  a  just  regard  to  our  own  laws  ?    In  Forbes  vs.  Coch- 


Crawford  et  al.  vs.  Short  et  al.  357 

now,  to  wit,  this  eleventh  day  of  December,  1832,  upon  opening  the 
above  eases  to  the  court,  it  appearing  to  the  court  that  no  instrument 
in  the  nature  of  a  bill  of  exceptions  presenting  fairly  and  fully  the 
point  or  points  decided,  for  which  said  exceptions  were  taken,  had 
been  signed  and  sealed  by  the  said  orphans'  court,  or  one  of  the  judges 
thereof :  It  is  ordered  by  the  court  that  the  appeals  be  therefore  dis- 
missed without  prejudice,  and  the  record  remanded  to  the  court  be- 
low." In  the  orphans  court,  March  7,  1833.  "And  now,  to  wit,  this 
first  day  of  March.  A.  D.  1833,  an  appeal  is  prayed  by  Alexander 
Crawford,  in  right  of  his  wife,  Rebecca,  and  by  Jacob  Moore,  in  right 
of  his  wife,  Margaret,  from  the  order  and  decree  of  this  court  of  Sep- 
tember 25th,  1832,  approving  and  confirming  the  return  in  this  cause, 
which  is  refused  by  the  said  court;  and  the  said  parties  so  appealing 
also  pray  the  said  court  to  sign  and  seal  an  instrument  in  the  nature 
of  a  bill  of  exceptions,  presenting  fairly  and  fully  the  points  decided 
for  which  the  said  parties  except  to  the  said  order  and  decree,  which 
is  refused  by  the  said  court,  on  the  ground  that  a  former  appeal  has 
been  taken  in  the  cause  and  dismissed  by  the  superior  court." 

Bayard,  for  appellants.  This  case  again  comes  up  before  the  court 
under  very  peculiar  circumstances.  The  appeal  was  dismissed  last 
term,  without  prejudice,  for  an  informality  in  the  record.  We  went 
down  to  the  orphans'  court  to  get  the  record  completed,  but  the  pre- 
siding judge,  who  sat  alone,  refused  to  sign  a  bill  of  exceptions,  and 
has  placed  that  refusal  and  the  reasons  for  it  on  the  record.  Having 
done  what  was  in  our  power  to  comply  with  the  act  of  assembly  in 
this  behalf,  and  failed  to  procure  the  necessary  document,  we  return 
to  this  court  for  remedy.  We  insist  that  the  right  of  appeal  is  se- 
cured to  us  by  the  constitution;  we  have  not  had  that  right  in  this 
case:  and  if  the  forms  of  proceeding  as  prescribed  either  by  the  prac- 
tice of  the  court  or  the  act  of  assembly  prevent  our  enjoying  this  right 
to  its  full  extent,  they  ought  to  be  disregarded  or  changed.  I  shall 
enquire,  therefore,  first,  whether  the  third  section  of  the  act  to  carry 
into  effect  the  amended  constitution,  (8  vol.  92)  making  it  necessary 
for  a  party  to  procure  from  the  judges  of  the  orphans'  court  a  paper 
in  the  nature  of  a  bill  of  exceptions  as  the  foundation  of  an  appeal, 
be  itself  constitutional;  and  second,  what  was  the  effect  of  the  dis- 
missal of  the  first  appeal  by  this  court. 

On  the  constitutional  question:  Power  is  inherent  in  the  body  of 
the  people:  all  bodies,  whether  legislative,  judicial  or  executive,  act 
by  a  delegated  power,  and  have  none  other  than  such  as  are  delegated 
or  essential  to  the  exeroise  of  those  that  are  granted.     The  judiciary 

rane,  2  Barn  &  Creswell  448,  471,  Mr.  Justice  Best  says  that  in  cases 
turning  on  the  comity  of  nations  it  is  a  maxim,  that  the  comity  cannot 
prevail  in  cases  where  it  violates  the  law  of  our  own  country,  the  law  of 
nature,  or  the  law  of  God.  And  all  the  authorities  sustain  the  position 
of  Chancellor  Kent,  (2  Com.  461)  "  that  when  the  lex  domicilii  and  the 
lex  fori  come  in  -direct  collision,  the  comity  of  nations  must  yield  to  the 
positive  law  of  the  land.  In  tali  conflictu  magis  est  ut  jus  nostrum  quam 
jus  alienum  servemus."  And  the  supreme  court  of  Louisiana  has  adopted 
the  rule,  that  whenever,  in  a  conflict  of  laws,  it  is  a  matter  of  doubt 
which  should  prevail,  the  court  which  decides  will  prefer  the  law  of  its 
own  country  to  that  of  the  stranger.     ('17  Martin's  Rep.  596.) 


358  Crawford  et  al.  vs.  Short  et  al. 

has  the  right  to  construe  these  delegations  of  power,  and  to  say  wheth- 
er the  legislature  has  exceeded  those  which  properly  belong  to  it. 
The  constitution  gives  the  right  of  appeal  in  this  case.  The  legisla- 
ture cannot  qualify  or  restrict  this  right  by  imposing  any  terms  on  a 
party  which  it  is  not  in  his  power  to  execute.  I  admit  that  the  legis- 
lature may  limit  the  exercise  of  this  right  to  a  certain  time,  or  pre- 
scribe the  form  of  its  enjoyment,  but  they  must  still  leave  to  the  party 
the  full  power  of  appeal.  Section  3d  of  the  act  under  consideration, 
restricts  the  right  of  appeal  to  points  of  law :  the  constitution  gives  an 
unlimited  right  of  appeal.  The  orphans'  court  decides  as  well  on 
the  facts  as  the  law,  and  so  must  the  court  of  appeal.  The  l^tw  com- 
pels a  party  to  procure  a  bill  of  exceptions:  the  constitution  has  no- 
such  pre-requisite.  The  signing  such  bill  is  a  matter  in  the  discre- 
tion of  the  judge,  which  the  party  cannot  control.  This  constitu- 
tional right  therefore  is  made  to  be  dependant  on  the  will  of  the 
judge.  The  legislature  has  no  more  power  to  impose  this  restriction 
than  wholly  to  take  away  the  right  of  appeal.  Cannot  a.  meaning  be 
given  to  this  act  which  will  not  conflict  with  the  constitution?  If  it 
can,  the  court  will  so  construe  it ;  if  not,  they  will  nullify  it.  The 
meaning  I  would  give  to  it,  then,  is,  that  it  is  the  privilege  of  a  party 
to  obtain  a  bill  of  exceptions  stating  the  points  of  his  case,  but  not 
his  duty.  It  may  frequently  be  convenient  to  do  so,  and  in  further- 
ance of  his  right  of  appeal,  but  not  obligatory  in  all  cases.  The  law 
imposes  an  obligation  on  the  judge,  when  the  party  desires  a  state- 
ment, to  give  it;  and  not  on  the  party  to  obtain  it,  or  lose  his  right 
of  appeal. 

The  question,  then,  is,  whether  the  refusal  of  the  judge  to  sign  the 
exceptions  can  deprive  the  party  of  his  appeal ;  and,  if  the  refusal  ap- 
pear on  the  record,  whether  this  court  will  not  hear  the  appeal  with- 
out a  bill  of  exceptions.  The  praying  an  appeal  below  is  merely 
formal;  the  court  above  has  the  decision  of  the  right  of  appeal;  and 
if  this  court  differs  from  the  orphans'  court,  where  the  appeal  has 
been  refused,  what  is  to  be  the  result?  It  must  of  necessity  go  on  to 
hear  the  case;  for  it  has  no  power  to  send  a  mandamus  to  the  court 
below,  either  to  grant  the  appeal  or  to  sign  the  bill  of  exceptions. 
In  determining  the  right  of  appeal  in  this  case,  we  are  to  consider. 

Secondly,  whether  the  dismissal  of  the  former  appeal  in  the  man- 
ner it  was  dismissed  by  this  court  did  prevent  another  appeal.  There 
is  a  limitation  of  the  right  of  appeal  to  one  year  after  the  decree, 
(Dig.  422)  and  I  admit  the  right  of  ihe  legislature  to  make  such  a 
limitation,  but  our  second  application  here  was  within  the  year. 
What  was  the  former  dismissal  ?  A  dismissal  "  without  prejudice  " 
for  an  informality  in  the  record,  which  prevented  a  full  hearing  of 
the  cause.  What  is  the  meaning  of  "without  prejudice?  "  Certainly 
without  prejudice  to  some  right  the  party  then  had.  Now  the  only 
right  he  had  was  that  of  appeal,  for  the  decree  below  was  final  as  to 
the  suit,  unless  reversed;  the  dismissal  then  was  qualified  expressly 
to  save  the  right  of  appeal. 

'Wales,  for  appellee.  The  constitution  establishes  the  general  right 
of  appeal,  subject,  as  all  its  general  principles  are,  to  be  carried  out, 
and  the  mode  of  its  enjoyment  prescribed,  by  legislative  provisions. 
The  counsel  admits  that  in  many  respects  the  legislature  can  limit 
and  control  this  right.    But  he  has  argued  here  as  if  the  appeal  had 


Crawford  et  al.  vs.  Short  et  al.  359 

been  denied;  as  if  the  appellants  have  never  had  an  opportunity 
offered  them  of  enjoying  this  their  right  of  appeal.  Now  they  have 
had  one  appeal  fully  granted,  brought  up  and  dismissed  by  the  appel- 
late court.  The  ground  of  that  dismissal  could  not  be  inquired  into 
by  the  orphans'  court.  That  court  saw  the  case  of  an  appeal  prayed, 
granted,  had  and  ended  by  dismissal.  It  heard  an  application  for  a 
second  appeal,  and  decided,  as  it  was  bound  to  do,  that  the  party  had 
no  right  to  a  second  appeal,  and  that  the  case  was  now  at  an  end. 
The  question  then  is,  whether  the  orphans'  court  erred  in  this  deci- 
sion; and  again,  whether  the  decision  on  such  a  matter  of  practice, 
the  right  of  appeal,  is  itself  the  subject  of  appeal. 

Rogers,  on  the  same  side.  First.  Is  the  party  here  entitled  to  a 
second  appeal?  The  constitution  gives  him  a  right  to  an  appeal. 
Has  he  not  enjoyed  that  right?  If  he  neglected  to  prosecute  his  ap- 
peal, or  brought  it  forward  in  an  improper  manner,  it  does  not  follow 
that  he  must  have  another  opportunity  to  do  so.  The  other  appeal 
was  dismissed  because  a  bill  of  exceptions  stating  the  points  decided 
had  not  been  signed.  Has  it  yet  been  signed?  Is  the  party  in  any 
better  condition  now?  Where  is  his  bill  of  exceptions?  And  does 
not  the  case  fall  within  the  authority  from  3  Term  Rep.  776-7,  cited 
by  the  president  of  the  orpJians'  court  on  refusing  the  second  appeal. 
That  was  the  case  of  an  appeal  defectively  taken,  or  not  properly 
prosecuted;  yet  it  was  held  to  be  conclusive. 

Second.  Is  the  act  of  1832  constitutional?  The  constitution  con- 
sists merely  of  fundamental  principles,  which  depend  on  legislative 
enactments  to  carry  them  out.  Thus  fhe  seventh  section  of  sixt' 
article.  The  superior  court  has  power  to  reserve  questions  to  be 
heard  in  the  court  of  appeals.  But  the  legislature  has  prescribed, 
and  the  courts  have  recognized,  the  form  of  reserving  these  ques- 
tions. So  in  the  exercise  of  appellate  jurisdiction  from  chancery; 
the  whole  form  of  taking  up  the  appeal  is  regulated  by  act  of  assem- 
bly; and  if  it  were  not  so  regulated  it  would  be  competent  for  this 
court  by  its  general  rules  to  prescribe  these  forms. 

If  this  court  is  to  exercise  an  appellate  jurisdiction  from  the  or- 
phans' court,  it  must  exercise  that  jurisdiction  upon  the  matters  de- 
cided below.  The  appeal  is  not  given  except  as  to  matters  decided 
in  the  court  below.  Now  is  it  not  essential  to  prescribe  some  form 
of  ascertaining  what  this  decision  was;  what  matters  were  adjudicated 
in  the  orphans'  court;  and  was  it  not  competent  for  the  legislature  to 
prescribe  such  forms  as  would  put  this  court  in  possession  of  the 
points  decided  there?  The  act  does  not  take  away  any  right  of  ap- 
peal, but  it  enables  the  party  to  exercise  that  right  in  the  only  man- 
ner he  can  properly  bring  his  case  before  the  appellate  court.  If  he 
has  neglected  to  pursue  this  course,  it  is  not  the  fault  of  the  law,  nor 
of  the  constitution,  one  of  which  has  secured  to  him  the  right,  and 
the  other  the  means  of  enjoying  the  right,  of  appeal. 

Read,  jr.,  in  reply.  In  a  case  in  the  orphans'  court  relating  to  real 
estate,  and  where  the  president  sat  alone,  a  decision  was  made  from 
which  we  appealed.  The  right  of  appeal  in  such  a  case  is  not  ques- 
tioned. The  appeal  was  taken,  and  the  moment  it  was  opened  in 
the  appellate  court  that  court  dismissed  it,  though  without  prejudice, 
because  no  paper  stating  the  points  decided  below  had  been  signed 
and  sent  up.     We  returned  to  the  orphans'  court  and  asked  it  to 


360  Crawford  et  al.  vs.  Short  et  al. 

supply  this  deficiency,  which  was  refused  because  a  former  appeal 
had  been  taken  and  dismissed.  The  question  then  is,  will  not  this 
court  hear  the  appeal  without  such  a  paper?  If  we  have  not  once 
had  an  appeal  in  this  case,  we  are  entitled  to  it.  What  is  an  appeal? 
An  opportunity  of  having  a  case  reheard  on  all  the  matters  disclosed 
in  the  court  below,  and  in  relation  to  which  that  court  decided.  Has 
there  ever  been  such  an  appeal  here?  No.  The  informality  of  the 
record,  an  informality  of  the  court  as  well  as  of  the  counsel,  pre- 
vented even  a  hearing  on  that  appeal.  And  to  avoid  any  prejudice  to 
the  party  appellant  from  the  action  of  the  appellate  court  it  expressly 
dismissed  the  appeal  without  prejudice.  These  words  are  nugatory 
and  idle  if  the  dismissal  concluded  this  case.  The  meaning  of  such 
a  qualified  dismissal  is  well  ascertained  in  chancery.  It  decides  noth- 
ing, prejudges  nothing,  asserts  or  denies  nothing,  but  leaves  the 
parties  in  the  full  enjojTuent  of  all  their  rights.  Standing  thus  as  if 
no  action  on  the  case  had  taken  place  in  this  court,  we  applied  to  the 
orphans'  court  to  perfect  the  record.  That  court  considered  it  an  ap- 
plication for  a  second  appeal,  and  refused  it.  From  that  decision  we 
have  the  right  of  appeal;  and  having  the  decision  and  the  ground  of 
it  on  the  record,  we  ask  this  court  to  reverse  it,  and  to  proceed  in  the 
hearing  of  the  case  at  large  without  the  bill  of  exceptions  which  it 
now  appears  we  cannot  procure.  The  case  cited  from  Term  Reports 
was  a  general  dismissal  of  the  first  appeal  on  hearing.  The  applica- 
tion was  actually  for  a  second  appeal.  The  opinion  of  Mr.  Justice 
Buller  proves  this. 

Curia  advisare  vult. 

Harrington,  J.  The  preliminary  question  in  this  cause  is,  whether 
the  third  section  of  the  "  act  to  carry  into  effect  the  amended 
constitution  and  for  other  purposes  "  is  constitutional.  If  it  be  so, 
this  case  is  at  an  end,  for  the  appellants  are  now  in  no  better  condition 
than  they  were  when  last  in  court,  and  when  their  appeal  was  dis- 
missed for  want  of  such  a  statement  of  the  points  decided  by  the  or- 
phans' court  as  is  required  by  that  law.  And  here  we  are  met,  in  lim- 
ine, with  the  inquiry,  how  is  it  possible  for  this  court  to  set  in  appeal 
to  revise  the  decisions  of  the  orphans'  court  without  knowing,  and  with- 
out the  means  of  knowing,  what  those  decisions  are?  It  is  very  true 
that  the  constitution  secures  to  the  party  a  right  of  appeal  to  this 
court  from  the  decisions  of  the  judges  of  the  orphans'  court  "  in  all 
matters  involving  a  right  to  real  estate,  or  the  appraised  value  or 
other  value  thereof,"  and  in  all  cases,  from  the  decisions  of  either 
one  of  the  judges  of  that  court  sitting  alone :  but  it  is  obvious  that  for 
the  enjoyment  of  this  right  some  provision  was  necessary  to  be 
made  to  put  the  court  of  appeal  in  possession  of  the  decisions  which 
were  appealed  from.  The  appeal  is  not  in  the  nature  of  a  new  trial 
or  general  rehearing  of  the  case  before  a  new  tribunal;  but  it  is  sim- 
ply the  right  of  having  the  decisions  below  examined  by  another 
court  on  precisely  the  same  state  of  facts  as  was  presented  to  that 
court.  This  necessarily  requires  a  statement  to  be  made  to  this  court 
of  the  points  decided  by  the  orphans'  court,  and  the  constitution  be- 
ing silent  on  the  subject,  it  is  necessarily  left  to  the  legislature  to 
make  such  arrangements  as  may  be  requisite  for  the  perfect  enjoyment 
of  this  right  of  appeal.  The  section  of  the  law  under  consideration  is 
an  attempt  to  effect  this  object;  it  may  be  imperfect,  and  thus  have 


CUAAVFORD  ET  AL.  VS.  SHOKT  ET  AL.  361 

failed  to  procure  in  every  case  the  means  of  enjoying  this  constitutional 
right;  but  this  only  proves  that  further  legislation  is  necessary,  and 
not  that  the  attempt  already  made  is  unconstitutional  because  it  may 
be  imperfect.  It  stands  upon  the  same  footing  with  the  "  act  concern- 
ing bills  of  exception,  cases  stated,  and  verdicts,"'  which  regulates 
the  practice  in  writs  of  error  sent  to  the  court,  and  which  must  neces- 
sarily be  unconstitutional  if  the  section  now  under  consideration  is  so. 
I  think  they  are  both  in  affirmance  and  in  furtherance  of  the  consti- 
tution, and  that  the  legislature  had  the  right,  and  it  is  their  duty,  to 
make  suitable,  and,  if  necessary,  further  provision  for  securing  the 
enjoyment  of  this  right  of  appeal.  The  constitution  furnishes,  and 
can  furnish,  but  a  general  outline  of  rights  and  duties  and  powers, 
leaving  matters  in  detail  to  be  regulated  by  legislative  provision. 
And  wherever  a  right  is  secured  by  the  constitution,  but  tlie  means 
of  its  enjoyment  are  not  pointed  out,  it  is  left  to  the  legislature  to 
furnish  them.  In  this  case  it  has  done  so.  It  has  made  it  expressly 
the  duty  of  the  judge,  "  at  the  request  of  the  party  appealing," 
to  sign  and  seal  an  instrument,  in  the  nature  of  a  bill  of  exceptions, 
presenting  fairly  and  fully  the  point  or  points  decided,  for  which  the 
exception  is  taken.  An  appeal  was  taken  from  the  original  decision 
of  the  chancellor,  but  no  stattoient  of  the  points  decided  was  signed 
by  him,  nor  was  any  application  made  to  him  for  this  purpose.  It 
was  his  duty  to  sign  it  only  at  the  request  of  the  party  a])pealing,  and 
if  he  is  now  deprived  of  his  appeal,  it  is  from  his  own  neglect. 

We  come  now  to  consider  the  second  decision  of  the  orphans' 
court,  refusing  an  appeal,  and  refusing  to  sign  an  instrument  in  the 
nature  of  a  bill  of  exceptions  after  this  court  had  dismissed  the  first 
appeal.  We  have  still  no  statement  of  the  matters  involved  in  the 
first  decision,  and  no  such  statement  of  the  point  finally  decided  as  is 
required  by  the  act  of  assembly;  but  we  have  it  stated  on  the  record 
that  the  refusal  by  the  orphans'  court  of  the  second  application  for  an 
appeal,  and  of  the  only  application  that  was  made  for  a  statement  of 
the  points  decided,  was  on  the  ground  that  a  former  appeal  had  been 
taken  in  the  cause  and  dismissed  by  this  court.  The  question  then 
arises,  whether  this  court  would  take  up  an  appeal  without  the  state- 
ment required  by  the  act  of  assembly  in  a  case  where  the  record 
otherwise  shows  the  points  decided,  and  where  it  appears  that  the 
judges  of  the  orphans'  court  had  refused  to  sign  a  statement  of  the 
points.  I  should  say  without  hesitation  that  it  would;  for  the  failure 
to  get  the  legal  and  proper  statement  does  not  in  such  a  case  arise 
from  the  laches  of  the  appellant,  and  this  court  is  enabled  from  the 
record  otherwise  to  ascertain  the  matters  actually  decided  below. 
But  not  so  where  the  record  does  not  show  the  points  decided,  or 
where  the  failure  to  get  the  legal  and  proper  evidence  of  the  decision 
is  entirely  owing  to  the  neglect  of  the  appellant.  In  tlfe  case  of 
Barns  vs.  Murray  and  wife,  in  Sussex  county,  last  term,  the  ap- 
pellant had  his  appeal  dismissed  for  the  want  of  a  sufficient  statement 
of  the  points,  though  a  statement  was  signed  and  sent  up;  and  this 
court  afterwards  refused  to  receive  another  statement  which  the 
judge  had  signed  to  amend  the  defects  of  the  first.  The  party  lost 
the  benefit  of  his  appeal  by  his  own  laches.  So  in  this  case  it  was 
the  neglect  of  the  party  in  not  procuring  a  statement  at  the  time  he 
took  his  appeal,  and  we  have  not  the  means  of  ascertaining  what  was 

46 


362  Cazier  vs.  Blackstock. 

decided  below,  or  what  is  appealed  from.  We  cannot  try  such  an 
appeal.  We  could  rehear  his  case,  but  it  would  not  be  a  review  of  a 
previous  decision,  but  a  new  trial  of  the  case.  This  is  not  what  was 
designed  by  the  right  of  appeal  granted  by  the  constitution. 

Whether  the  last  decision  of  the  orphans'  court  is  correct  or  not, 
the  appellants  are  not  here  in  a  condition  to  have  their  appeal  from 
the  original  decision  tried,  which  is  their  object.  I  have  looked  some- 
what into  that  question,  and  though  I  do  not  think  it  necessary  tO' 
decide  it,  I  will  say  that  the  case  cited  from  3  Term  Rep.  is  a  strong 
authority  in  favor  of  the  chancellor's  decision.  It  was  an  application 
for  a  mandamus  to  the  quarter  sessions  to  try  an  appeal  against  a 
conviction  by  a  justice  of  the  peace.  The  statute  gave  the  right  to 
appeal  within  six  months,  on  giving  notice  of  the  intention  to  appeal 
and  giving  security,  within  four  days  after  the  notice,  to  prosecute 
the  appeal.  Notice  of  the  appeal  was  given,  and  also  security;  but, 
it  appearing  that  the  security  was  not  entered  into  within  the  four 
days,  the  appeal  was  disallowed.  The  appellants  within  the  six 
months  gave  a  second  notice  and  entered  into  security  in  due  form; 
but  the  sessions  refused  to  try  the  appeal,  being  of  opinion  that  the 
appellants  were  concluded.  The  court  refused  the  mandamus. 
Lord  Kenyon  said  that  after  the  appedl  was  lodged  and  adjudged  by 
the  justices  to  be  informal  they  were  functi  officio  and  could  not 
take  cognizance  of  a  second  appeal.  Ashurst  went  on  the  ground  of 
the  neglect  of  the  appellant,  and  Buller  thought  that  even  the  first 
notice  without  the  dismissal  precluded  a  further  appeal.  Grose,  J. 
concurred.  Now,  whatever  may  be  the  effect  of  this  court  having 
dismissed  the  first  appeal  without  prejudice,  it  was  a  decision  that 
the  appeal  was  informal,  and  goes  the  full  length  of  the  authority 
cited. 

I  am  of  the  opinion  that  this  court  ought  not  to  entertain  the  ap- 
peal. 

The  other  judges  concurred  generally. 

Appeal  dismissed, 

Mr.  Bayard  moved  to  reinstate  the  appeal,  and  for  a  rule  to  show 
cause  why  a  mandamus  should  not  issue  to  the  president  judge  of 
the  orphans'  court,  commanding  him  to  sign  and  seal  an  instrument 
in  the  nature  of  a  bill  of  exceptions,  presenting  fairly  and  fully  thd 
points  decided;  which  was  refused,  without  argument.  The  court 
referred  to  the  case  of  Worknot,  u^e  of  Earle,  vs.  Millen,  in  the 
late  high  court  of  errors  and  appeals,  in  which  that  court  decided 
that  it  had  not  the  power  to  send  a  mandamus  to  the  supreme  court. 

So  Mr.  Bayard  took  nothing  by  his  motion. 

J.  A.  Bayard  and  Read,  jr.  for  appellants. 

Wales  and  Rogers,  for  appellees. 


JOHN  CAZIER  vs.  ROBERT  BLACKSTOCK. 

Notice  to  the  counsel  on  record  of  meeting  of  arbitrators  held  sufficient  under 

circumstances. 
As  a  general  rule,  notice  must  be  given  to  the  party. 

Rule  to  show  cause  why  an  award  should  not  be  set  aside  for  want 
of  notice. 


Hartwell  vs.  McBeth.  363 

Notice  of  the  meeting  of  the  arbitrators  had  been  given  to  the 
deft.'s  counsel,  but  not  to  the  deft,  himself. 

Mr.  Booth,  the  counsel  of  record  for  Blackstock,  admitted  that 
notice  had  been  served  upon  him,  but  he  contended  that  notice  to 
the  party  was  necessary,  and  such  had  been  the  uniform  practice. 

The  plff.  filed  an  affidavit  that  the  deft,  was  out  of  the  state,  and 
has  been  for  a  long  time,  and  that  he  could  not  ascertain  where  he 
resided.  The  suit  was  docketed  by  the  counsel  of  Blackstock  and 
referred  by  consent.  This  reference  was  afterwards,  on  motion  and 
by  consent,  stricken  out,  and  the  case  again  referred  to  the  present 
arbitrators.  In  all  these  proceedings  the  deft.,  Blackstock,  had  acted 
by  his  counsel,  without  personal  appearance,  and  he  ought  not  now 
to  be  permitted  to  make  this  objection  to  the  award. 

Under  the  circumstances  the  court  discharged  the  rule,  stating  at  the 
same  time,  that  as  a  general  rule  of  practice,  notice  to  counsel  would 
not  be  considered  sufficient.     See  Simian  vs.  Bernard's  admx.  post. 

Rule  discharged. 

Read,  jr.  for  plaintiff. 

Hamilton  and  Booth,  for  defendant. 


JOHN  HARTWELL,  for  the  use  of  HENRY  HARTWELL  vs. 
WILLIAM  H.  McBETH  and  ALEXANDER  McBETH. 

A  blank  indorsement  does  not  absolutely  transfer  the  property  in  a  note. 
Either  indorsee  or  indorser  may  sue  upon  it. 

The  indorser  may  turn  it  into  a  special  indorsement,  and  then  he  only  can  sue. 
The  want  or  failure  of  consideration  may  be  given  in  evidence  as  between  the 
original  parties  to  the  note. 

Case.     Narr. 

Pleas,  non  assumpsit,  pa5'^ment,  set-off  and  act  of  limitations. 
Issues. 

The  plff.  counted  on  the  following  note: 

"  Philadelphia,  February  ISth,  1832. 
"$425  33-100. 

"  Three  months  after  date  we  promise  to  pay  to  the  order  of  John 
Hartwell,  four  hundred  and  twenty-five  32-100  dollars,  without  de- 
falcation, for  value  received. 

(Signed)     W^m.  H .  McBeth, 
Alex.  McBeth." 

The  note,  when  produced,  had  the  following  indorsements :  "  J. 
Hartwell,  T.  R.  Hartwell,  H.  Wright,  W.  Van  Amringe." 

Bayard  moved  a  nonsuit.  By  the  indorsement  of  a  note  both  the 
equitable  and  legal  interest  pass  to  the  indorsee.  This  note  having 
been  indorsed  by  John  Hartwell,  he  has  no  longer  any  interest  in  it, 
and  cannot  sue  upon  it,  nor  can  Henry  Hartwell,  the  indorsee  and 
present  holder,  turn  himself  into  a  cestui  que  use.  The  suit  should 
be  brought  in  his  name,  as  the  party  having  the  legal  title  to  the 
instrument. 

Hamilton.  The  indorsee  of  a  note  is  not  bound  to  sue  in  that 
character,  but  may  use  the  name  of  his  indorser.     In  the  case  of  the 


364  Elliott  is.  Bbindlly  and  Chandler. 

assignment  of  a  bond,  the  assignee  may  sue  in  the  name  of  the  obligee 
for  his  own  use,  without  stating  the  assignment.  It  was  so  decided 
by  the  court  of  common  pleas  in  Broom  vs.  The  Female  Benevolent 
Society. 

Bayard..  The  case  of  a  bond  with  warrant  of  attorney  to  confess 
judgment  stands  on  different  ground.  The  warrant  is  usually  to  ex- 
ecutors and  administrators  —  seldom  extends  to  assigns.  The  party, 
therefore,  would  have  to  use  the  assignor's  nanje  to  avail  liimself  of 
the  warrant. 

A  majority  of  the  court  refused  the  nonsuit,  the  chief  justice  dis- 
senting. The  majority  agreed  that  a  blank  indorsement  was  snilicicnt 
to  transfer  the  right  of  action  to  the  indorsee,  but  while  it  remains  in 
blank  he  may  consider  himself  as  a  cestui  que  use,  or  servant,  and 
the  action  may  still  be  brought  in  the  name  of  the  indorser.  If  the 
indorser  turns  the  blank  indorsement  into  a  special  one,  as  he  may 
do,  the  property  in  the  note  is  then  transferred  to  him,  and  he  only 
could  bring  the  action.  Chitty  on  Bills,  174;  Salk.  130;  12  Mod. 
193;  Seliu.  N.  P.  331-2. 

Treating  this  as  an  action  between  the  original  parties  to  the  note, 
the  court  permitted  evidence  to  be  given  of  a  want  or  failure  of  the 
consideration,  and  the  plff.  finally  submitted  to  a  nonsuit.  Chitty  on 
Bills,  91. 

Hamilton,  for  plaintiff. 

J.  A.  Bayard,  for  defendants. 


JOHN  G.  ELLIOTT  vs.  JAMES  J.  BRIXDLEY  and  WILLIAM  F. 

CHANDLER. 

Referees  may  try  the  grade  of  a  debt  claimed  against  a  decedent's  estate,  ant 
report  its  order  of  preference  in  the  application  of  assets. 

Debt  on  administration  bond. 

Narr,  suggesting  a  devastavit.  Pleas,  nil  debet,  plene  adminis- 
travit,  debts  outstanding  of  superior  dignity,  and  no  assets  ultra. 

Bayard.  Elliott  brought  a  suit  against  the  present  defts.  as  admin- 
istrators of  Caleb  Kirk,  for  wages  as  a  laborer  on  a  farm;  that  suit 
was  referred,  and  the  referees  reported  "  that  there  is  a  balance  due 
John  G.  Elliott  from  the  estate  of  Caleb  Kirk  of  $191  57,  accruing 
from  hire  and  claiming  a  preference  under  the  law  of  this  state,  being 
a  less  sum  than  one  year's  wages."  Dig.  225.  Judgment  was  ren- 
dered on  this  award,  and  the  administrators  having  refused  to  pay, 
the  present  action  is  brought  suggesting  a  devastavit.  The  fact  that 
this  claim  is  of  a  character  preferred  by  the  act  of  assembly  to  other 
debts  is  established  by  the  award  itself.  It  is  apparent  that  they  had 
this  subject  before  them  and  examined  into  the  nature  of  the  claim 
with  a  view  to  determine  its  grade.  They  were  competent  to  decide 
this  question,  and  the  award  is  conclusive  as  to  it. 

Wales.  The  first  question  is  whether  the  character  or  grade  of  the 
debt  or  the  order  of  preference  was  submitted  to  the  referees;  if  not 


II 


EoBiNSON  VS.  Mitchell  &  Quinn.  365 


so  submitted,  they  could  not  try  it.  The  rule  of  reference  is  to 
ascertain  an  amount  claimed  to  be  due,  and  not  to  try  the  character 
of  the  demand.  In  the  next  place,  it  is  not  certain  that  they  did  in 
point  of  fact  ascertain  the  nature  of  this  claim.  The  note  appended 
to  the  report,  that  it  was  claimed  as  a  preferred  debt,  does  not  show 
that  it  was  so  decided. 

Bayard.  The  rule  of  reference  submits  "  all  matters  in  controversy 
between  the  parties."  The  referees  have  expressly  the  power  to 
find  assets.  They  ma}'^  therefore  find  the  nature  of  the  debt  in  order 
to  show  what  assets  are  applicable  to  it.  The  expression  is  not  that 
the  pllf.  daivied  a  preference,  but  that  the  icages  claimed  a  prefer- 
ence by  law. 

The  court  were  of  opinion  that  the  referees  meant  to  decide  this 
question,  and  that  they  were  competent  to  decide  it.  They  might 
find  a  sum  due  on  bond,  or  for  rent,  or  for  wages;  and  if  the  party 
meant  to  controvert  the  fact,  or  to  object  to  the  award  for  stating  ex- 
traneous matter,  he  should  have  done  so  before  the  confirmation. 


J.  A.  Bayard,  for  plaintiff. 
Wales,  for  defendants. 


Verdict  for  plaintiff. 


LEWIS  H.  EOBINSOX  vs.  JAMES  MITCHELL  and  EDWARD 
QinXX,  trading  under  the  name  and  firm  of  MITCHELL  & 
QUINN. 

The  prayer  of  a  note  cannot  indorse  it  over  after  it  lias  been  attached  in  the 

drawers'  hands. 

Case, 

This  was  an  action  on  a  promissory  note  made  by  Mitchell  & 
Quinn  in  favor  of  Edward  Marshall,  and  endorsed  by  him  to  the  plff. 
Robinson.    The  note  was  payable  on  demand. 

The  pleas  were  —  first,  non  assumpsit;  second,  payment;  third, 
"  that  the  amount  of  said  note  was  attached  in  the  def  t.'s  hands  by 
virtue  of  a  writ  of  fi.  fa.  attachment  at  the  suit  of  the  Farmers'  Bank 
against  the  said  Edward  ]\farshall,  the  indorser,  before  the  said  note 
was  indorsed  to  plff. ;  and  that  they  had  paid  over  the  amount  to  the 
said  Farmers'  Bank  according  to  the  judgment  of  the  court,  on  said 
attachment,  against  them  as  the  garnishees  of  the  said  Edward 
Marshall." 

To  this  third  plea  there  was  a  general  demurrer  and  joinder. 

Judgment  for  defts. 

Gilpin,  for  plaintiff. 

J.  A.  Bayard,  for  defendants. 


366  Morrison  vs.  W.  &  K.  Turnpike  Co. 

JAMES  MOERISON  vs.  THE  WILMINGTOIT  AND  KENNET 
TUENPIKE  COMPANY. 

Justices  have  not  the  power  to  take  confessions  of  judgment  without  previous 
proceedings;  except  in  the  case  of  a  judgment  note. 

Certiorari. 

Record.  "  Action  for  tolls.  Demand,  $31  81^.  November  5, 
1828.  The  deft,  appears  and  confesses  judgment  for  debt,  thirty-one 
81-100  dues  and  costs.    $3181." 

Exception.  That  the  justice  had  no  power  to  record  a  confession 
of  judgment  without  process. 

Wales.  This  is  a  special  jurisdiction,  limited  to  the  grant.  We 
must  look  to  the  law,  therefore,  for  the  justice's  authority.  The  act 
gives  to  justices  of  the  peace  jurisdiction  in  certain  claims,  and  pre- 
scribes the  form  of  exercising  that  jurisdiction  on  suits  regularly  in- 
stituted either  by  capias  or  summons,  and  so  proceeding  to  judgment. 
In  the  course  of  such  proceedings  the  justice  has  authority  to  render 
judgment  either  by  default  or  on  confession.  These  preliminary 
forms  are  all  useful  checks  on  the  magistrate.  If  he  may  enter  a  judg- 
ment without  previous  process,  such  judgment  depends  altogether  on 
the  truth  of  his  own  statement.  No  previous  proceedings;  no  cause 
of  action  filed ;  nothing  spread  upon  the  record  by  which  you  can  test 
either  his  jurisdiction  or  the  correctness  of  his  judgment.  He  says 
that  the  deft,  authorized  him  to  record  such  a  judgment,  and  there  ia 
an  end  to  all  further  inquiry.  If  the  legislature  meant  to  confer  this 
power,  they  would  undoubtedly  have  provided  that  the  party  confess- 
ing the  judgment  should  sign  it.  The  special  authority  given  to  the 
justice  to  enter  judgment  without  process,  on  notes  containing  a  war- 
rant authorizing  an  entry  of  such  judgment,  proves  my  position. 
1  Binney  R.  105;  Allworthy  vs.  Dawson;  Dig.  337.  If  this  power, 
nay,  the  much  greater  power  of  entering  judgments  not  only  on 
notes  and  other  written  instruments,  but  on  verbal  confession,  had  ex- 
isted before,  there  would  have  been  no  necessity  for  this  special  pro- 
vision in  the  case  of  judgment  notes.  And  the  grant  of  authority 
even  in  this  case  is  specially  guarded;  the  note  shall  be  filed  with  the 
justice,  and  the  deft,  is  permitted,  on  denying  it  by  affidavit  or  set- 
ting forth  any  just  defence,  to  have  the  judgment  set  aside  and  be  let 
into  a  trial  of  the  whole  case. 

Hamilton.  The  objection  made  here  is  to  the  truth  of  the  record, 
which  can  only  be  taken  in  a  different  proceeding:  an  action  against 
the  justice  for  a  false  return.  The  exception  is  nothing  else  than  a 
denial  of  what  the  justice  has  certified  to;  namely,  that  the  deft,  did 
appear  before  him  in  person  and  confess  a  judgment  for  this  amount. 
Which  will  the  court  take?  The  deft.'s  denial  or  the  justice's  cer- 
tificate. And  it  is  not  competent  for  the  party  himself  to  set  up  this 
objection.  He  cannot  controvert  his  confession;  he  is  concluded  by 
his  own  act.  It  was  simply  the  case  of  parties  appearing  before  a 
justice,  to  save  ^pense  waiving  all  previous  proceedings,  and  the 
deft,  confessing  a  judgment  for  the  amount  actually  due.  Consensus 
tollit  errorem,  if  there  was  any  error  in  the  case;  and  he  ought  not 
now  to  be  permitted  to  retract  that  consent. 


Bailey  vs.  Seal's  special  bail.  367 

The  court.  If  a  party  could  appear  and  confess  judgment  before  a 
justice  in  person,  he  could  also  appear  by  attorney,  which,  before  the 
late  act  of  assembly,  we  all  agree  he  could  not.  That  act  does  not 
extend  beyond  the  case  of  a  written  warrant  authorizing  the  entry  of 
judgment,  and  does  not  give  power  to  enter  judgment  otherwise.  It 
is  also  specially  guarded  to  afford  relief  where  the  warrant  is  denied. 
The  question  is  important  in  principle,  considering  the  nature  of  this 
jurisdiction.  It  cannot  be  derived  from  the  agreement  of  the  parties. 
Consent  cannot  give  jurisdictipn.  If  it  is  to  be  derived  from  the 
law,  it  ought  to  be  expressly  given.  The  grant  of  jurisdiction  to 
these  inferior  tribunals  should  be  taken  strictly.  In  our  opinion,  the 
power  to  take  confessions  of  judgments  without  previous  proceedings 
is  not  given,  except  in  case  of  note  and  warrant,  and  we  think  it 
would  be  a  dangerous  power. 

Judgment  reversed. 

Wales,  for  Morrison. 

Hamilton,  for  the  turnpike  company. 


JOHN  BAILEY  vs.  JOSHUA  T.  SEAL'S  Special  Bail. 

A  discharge  under  the  insolvent  laws  of  New  York  prevents  the  arrest  of  the 

deft.'s  person  here,  if  the  debt  arose  there. 
Special  bail  relieved  in  such  a  case. 

Rule  to  show  cause  why  an  exoneretur  should  not  be  entered  on  a 
bail  piece. 

The  cause  of  action  in  this  case,  as  against  the  deft.  Seal,  was  a 
note  drawn  in  the  state  of  New-York  and  indorsed  by  him  to  plff. 
on  which  judgment  had  been  recovered  in  this  court.  (Ante  232.) 
After  the  indorsement  of  that  note  Seal  was  discharged  under  the 
insolvent  laws  of  New-York,  of  which  proceeding  Baily  had  notice 
as  one  of  his  creditors. 

The  question  was  whether  such  a  discharge  would  operate  to  pre- 
vent the  deft.'s  arrest  here  for  the  same  debt. 

Hamilton  cited  the  case  of  Pedder  vs.  MacMaster,  8  T.  Rep. 
609;  in  which  the  Court  of  King's  Bench  refused  to  order  an  exon- 
eretur in  a  similar  case. 

Bayard  said  that  the  rule  had  been  settled  in  this  state  for  thirty 
years  past,  that  our  court  would  recognize  and  give  effect  to  a  dis- 
■charge  under  the  insolvent  laws  of  other  states.  A  discharge  under 
the  bankrupt  laws  in  England  discharges,  not  only  the  person  of  the 
debtor,  but  the  debt  itself.  The  English  rule  is  not  applicable  to 
our  insolvent  proceedings;  and  it  would  be  less  applicable  to  our 
condition,  considering  the  relations  which  the  several  states  bear  to 
each  other. 

Hamilton  admitted  that  the  rule  had  been  so  settled  in  reference 
"to  discharges  in  Pennsylvania  and  Maryland;  but  he  contended  that 
it  was  a  rule  which  depended  merely  upon  that  comity  which  one 
state  might  choose  to  extend  to  another,  and  he  said  that  in  New- 


368  Guthrie,  assignee  of  sheriff  vs.  Morrison. 

York  such  a  discharge  under  our  insolvent  laws  would  not  be  recog- 
nized. 

The  rule  was  made  absolute. 

Hamilton,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 


MARTHA  GUTHRIE,  assignee  of  MARCUS  E.  CAPELLE,  Sheriff, 
vs.  THOMAS  MORRISON. 

Bail  to  the  Sheriff  let  in  to  defend  the  original  action  after  judgment  by  de- 
fault against  his  principal,  and  also  judgment  by  default  against  himself. 

Action  on  a  bail  bond. 

Judgment  by  default.  Rule  to  show  cause  why  the  judgment 
should  not  be  set  aside  and  the  deft,  let  in  to  defend  the  original 
action. 

Suit  was  commenced  by  the  plff.  against  one  John  V.  Hyatt,  for 
whose  appearance  the  deft,  entered  bail  to  the  sheriff.  Judgment 
went  against  principal  by  default;  and  the  bail  bond  having  been 
sued,  judgment  went  also  against  the  bail,  the  deft,  by  default.  He 
now  filed  an  affidavit  tbat  lie  was  informed  by  his  principal  that  the 
claim  in  the  original  action  was  settled,  and  that  he  need  not  trouble 
himself  further  about  it;  in  consequence  of  which  information  he 
suffered  judgment  to  go  by  default;  and  he  swore  that  he  had  been 
informed  by  Hyatt  that  he  had  a  good  defence  on  the  merits  in  the 
original  action. 

The  Court  made  the  rule  absolute  so  far  as  to  let  Morrison  in  to  de- 
fend the  original  action  against  his  principal,  this  judgment  to  remain 
a  security  for  what  should  be  found  due  on  that  trial.  And  they  re- 
ferred to  the  act  of  assembly  (Dig.  62)  which  gives  the  court 
power  to  grant  to  the  bail  "  such  relief,  upon  such  terms  and  in  such 
manner,  as  shall  be  just  and  equitable." 

Rule  absolute. 

Gilpin,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 


COURT  OF  EERORS  AND  APPEALS. 
JUNE  TERM, 

1834. 


SAMUEL  Mcdowell  vs.  the  president,  directoks 

AND  COMPANY  OF  THE  BANK  OF  WILMINGTON  AND 
BRANDYWINE. 

If  the  maker  of  a  note  has  funds  in  the  bank  on  general  deposit  after  the  note 

falls  due,  the  bank  is  bound  to  apply  them  in  payment  of  the  note,  or  the 

indorser  is  discharged. 
Giving  time  to  the  drawer  discharges  the  indorser. 
Equity  will  distinguish  between  principal  and  surety,  though  the  nature  of  the 

security  be  such  as  to  make  them  all  principals  in  a  court  of  law. 
The  oath  of  one  witness,  with  corroborating  circumstances,  will  outweigh  an 

answer  on  oath. 
Quere.     Will  not  the  oath  of  one  witness,  unsupported,  establish  a  fact  against 

the  answer  of  a  corporation? 
Under  peculiar  circumstances  a  court  of  equity  will  assess  damages,  or  send  an 

issue  to  law  to  have  them  assessed. 
Surety  paying  the  debt  of  his  principal,  stands  in  the  place  of  the  creditor,  and 

is  entitled  to  an  assignment  of  all   securities,  original  and  collateral. 

Appeal  from  the  decree  of  the  chancellor. 

The  bill  stated:  That  Thomas  McDowell  made  a  promissory  note, 
dated  Gth  October,  1817,  for  $500,  in  favor  of  complainant,  which 
was  indorsed  by  him  and  discounted  by  the  bank,  for  the  accommo- 
dation of  the  maker.  This  note  was  afterwards  protested  for  non- 
payment, and  pnt  in  suit  and  judgment  obtained  against  the  indorser 
on  the  7th  April,  1819,  for  $541  16.  No  suit  was  instituted  against 
Thomas  McDowell,  the  maker.  That  after  the  said  judgment  was 
recovered  against  the  indorser,  the  bank  became  indebted  to  the 
maker  in  several  sums,  amounting  to  $500,  which,  instead  of  applying 
to  the  payment  of  the  said  note,  they  paid  over  to  Thomas  McDow- 
ell. That  they  afterwards  entered  into  an  arrangement  with  the  said 
Thomas  McDowell,  who  was  a  notarv  public,  that  he  should  do  the 
protesting  for  the  bank,  and  that  of  the  fees  for  such  protests  63^ 
cents  for  each  note  protested  should  be  credited  to  the  said  note,  and 
the  balance  paid  to  him  in  cash ;  which  agreement  was  to  continue  un- 
til the  note  was  paid,  and  payment  in  any  other  manner  was  not  to  be 
required  of  him  whilst  he  continued  to  do  the  protesting.  Under 
this  agreement  $80  was  paid  to  Thomas  McDowell  and  $150  credited 
to  the  note.  The  said  agreement  was  made  without  the  privity  or 
consent  of  Samuel  ^fcDowell,  the  indorser.  That  ever  since  April, 
1819,  Thos.  McDowell  had  made  srenerRl  deposits  of  money  in  the 
bank,  which  were  passed  to  his  credit  and  paid  out  on  his  checks,  and 
the  balances  due  him  frequently  exceeded  the  amount  of  the  said  note. 


370  McDowell  vs.  Bank  of  Wil.  &  Bran. 

out  of  which  it  ought  to  have  been  paid  by  the  bank.  That  no  de- 
mand was  made  on  complainant  for  payment  of  the  said  judgment  of 
April,  1819,  until  the  year  1829,  when  he,  having  sold  thirty-six 
shares  of  the  stock  of  the  said  bank,  called  for  the  purpose  of  trans- 
ferring the  same  on  the  books  of  the  bank,  which  was  refused,  as  the 
bank  claimed  a  lien  on  the  stock  for  the  payment  of  said  judgment: 
in  consequence  of  this  refusal,  complainant  was  unable  to  complete 
his  said  sale,  and  he  has  been  further  injured  by  the  depreciation  of 
the  stock.  That  the  bank  still  refuses  to  permit  a  transfer  of  the  said 
thirty-six  shares  of  stock,  and  has  caused  a  scire  facias  to  be  issued 
for  the  purpose  of  reviving  and  executing  the  said  judgment  against 
complainant. 

Prayer.  A  perpetual  injunction  against  any  further  proceedings  at 
law  upon  the  said  judgment;  that  defts.  may  be  decreed  to  pay  to 
complainant  the  damage  he  has  sustained  from  their  refusing  to  per- 
mit him  to  transfer  his  stock;  and  for  general  relief. 

The  answer  admitted  the  making,  indorsing  and  discounting  of 
the  note,  and  that  the  same  was  discounted  for  the  accommodation  of 
the  maker,  and  the  proceeds  passed  to  his  credit.  That  Thomas 
McDowell  had  received  from  the  bank  since  judgment  was  obtained 
against  the  indorser  of  said  note  several  sums  of  money  due  him  for 
fees  as  notary  public  and  justice  of  the  peace,  and  that  the  said  sums 
were  not  retained  and  applied  to  or  set  off  against  the  said  note,  there 
being  no  direction  of  the  said  Thomas  McDowell,  nor  any  obligation 
on  the  defts.  so  to  do :  the  said  sums  were  paid  in  cash  or  deposited  as 
cash  by  Thomas  McDowell  "as  justice  of  the  peace,  and  by  him 
drawn  out  by  his  checks."  That  an  arrangement  was  made  between 
the  bank  and  Thomas  McDowell  in  relation  to  protests  as  stated  in 
the  bill ;  but  the  defts.  denied  that  such  arrangement  was  to  continue 
until  the  note  was  paid  off,  or  that  payment  thereof  was  not  to  be  de- 
manded of  said  Thomas  McDowell  in  any  other  way  whilst  he  con- 
tinued to  perform  his  part  of  the  agreement.  They  admit  the  payment 
to  Thomas  McDowell,  for  protests  under  this  agreement,  of  $80  in 
cash,  and  about  $150  by  way  of  credit  to  his  note;  and  that  he  has 
made  deposites  since  April,  1819,  "as  a  justice  of  the  peace,  but  not 
in  his  own  individual  capacity  and  name ; "  but  they  deny  that  the 
balances  due  at  any  time  equalled  the  said  note.  They  did  not  demand 
the  said  judgment  of  complainant,  because  he  was  insolvent,  and  had 
been  discharged  under  the  insolvent  laws  of  this  state.  They  admit 
their  refusal  to  permit  him  to  transfer  his  bank  stock  until  he  paid  the 
said  judgment,  and  also  that  they  have  issued  a  scire  facias  on  the  said 
judgment  for  the  purpose  of  reviving  the  same,  and  have  obtained 
judgment  thereon ;  that  at  the  time  of  refusing  to  allow  the  said  trans- 
fer, and  before  and  ever  since,  there  was  a  by-law  of  the  said  bank, 
duly  and  legally  made,  "  that  any  stockholder  being  indebted  to  the 
bank  shall  not  be  at  liberty  to  sell,  assign  or  transfer  his  stock,  or  any 
part  thereof  whilst  his  debt  shall  remain  due  and  unpaid,  and  that 
such  dividends  shall  remain  pledged  to  the  bank  until  such  debts  be 
paid,  or  they  shall  be  arranged  to  the  satisfaction  of  the  board ;  pro- 
vided that  no  stock  at  a  fair  market  price  shall  be  retained  beyond  what 
is  sufficient  for  the  security  for  the  debt  that  may  be  payable,  "  which, 
by-law,  they  alledge,  is  a  sufficient  authority  for  their  said  refusal. 
{Ante  27.)     The  answer  further  set  forth:  That  Samuel  McDowell 


I 


^— r  McDowell  vs.  Bank  of  Wil.  &  Brax.  371 

sued  the  bank  for  refusing  to  let  him  transfer  the  said  thirty-six 
shares  of  bank  stock  and  on  the  trial  of  that  suit  a  verdict  was  ren- 
dered for  the  defts.  under  the  charge  of  the  court,  that  the  said  by- 
law was  a  good  and  reasonable  by-law  and  a  sufficient  ground  for  re- 
fusing to  transfer  said  stock,  and  that  the  same  stood  pledged  for 
said  debt,  and  that  it  was  not  incumbent  on  said  bank  to  apply  the 
deposites  of  the  said  Thonias  McDowell  to  the  said  note;  a  judgment 
having  been  rendered  against  the  said  Samuel  McDowell,  there  must 
be  an  actual  payment  or  release  to  discharge  the  same." 

The  deposition  of  Thomas  McDowell  proved  the  agreement  in  re- 
lation to  fees  for  protests  as  stated  in  the  bill,  and  "  that  this  ar- 
rangement was  to  continue  until  the  debt  was  paid,  and  it  was  ex- 
pressly understood  at  the  time  of  making  it,  that  recourse  was  not  to 
be  had  to  the  indorser."  He  also  swore  that  he  had  no  separate  ac- 
count with  the  bank  as  justice  of  the  peace  or  notary  public. 

On  the  hearing  the  chancellor  dismissed  the  bill,  with  costs,  and 
the  case  now  came  up  on  appeal  from  this  decree. 

Bayard,  for  complainant,  contended  that  the  agreement  made  by 
the  bank  with  Thomas  McDowell  in  relation  to  protests  was  such  an 
agreement  as  discharged  the  indorser.  It  was  an  agreement  for 
giving  time,  substituting  another  mode  of  payment,  and  putting  it 
out  of  their  power,  at  least  for  a  time,  to  proceed  against  the  princi- 
pal. If  time  be  given  to  the  principal  by  contract,  the  surety  is  dis- 
charged. Is  the  agreement  proved?  Is  Thomas  McDowell  a  com- 
petent witness?  The  rule  is  that  a  party  to  a  note  is  not  competent 
to  deny  its  original  validity,  but  he  is  competent  as  o  any  subse- 
quent matter,  such  as  payment,  discharge,  &c.  Is  the  oath  of  one 
witness  sufficient  to  prove  it?  The  answer  of  defts.  speak  very  gen- 
erally on  the  subject  of  this  arrangement,  admits  its  general  terms, 
but  denies  its  extent;  it  is  not  on  oath,  and  therefore  not  entitled  to 
the  credit  of  an  individual  answer,  for  then  oath  would  stand  against 
oath;  but  even  in  that  case  the  testimony  of  one  witness,  with  con- 
curring circumstances,  would  be  sufficient  to  outweigh  the  answer 
and  establish  the  fact.  Do  not  the  circumstances  in  this  case  fully 
corroborate  the  deposition  of  Samuel  McDowell?  3  Merivale,  272. 
2  Vezey,  jr.  543. 

Second.  Supposing  it  is  proved  that  the  bank  had  in  its  power  a 
fund  which  might  have  been  applied  to  the  payment  of  this  note, 
they  were  bound  in  equity  to  make  such  application  of  it,  and  if  they 
have  paid  it  over  to  the  maker,  the  indorser  is  discharged.  Even 
where  a  balance  was  paid  over  to  the  principal  on  an  erroneous  settle- 
ment with  him,  the  surety  was  held  to  be  discharged.  Law  vs.  East 
India  Company,  4  Vezey,  824. 

If  this  indorser  is  discharged,  the  court  will  decree  a  satisfaction 
of  the  judgment  against  him.  The  question  then  arises,  whether 
the  complainant  is  not  entitled  to  compensation  in  equity  for  his  dam- 
age occasioned  by  the  refusal  of  defts.  to  permit  him  to  transfer 
his  stock.  I  admit  that  if  damages  can  be  recovered  at  law,  a  court 
of  equity  will  not  allow  them;  but  when  they  arise  out  of  a  transac- 
tion which  cannot  be  developed  in  a  court  of  law;  if  the  injury  be 
established  in  equity  that  court  will  give  satisfaction.  It  is  but  car- 
rying out  the  principle  of  relief,  and  applying  it  to  an  injury  already 
established.    And  if  this  court  cannot  assess  the  amount  of  the  dam- 


372  McDowell  vs.  Bank  of  Wil.  &  Bran. 

age  it  will  send  an  issue  to  a  court  of  law  for  this  purpose.  Butler 
vs.  Pendergrast,  4  Brown  Par.  Cases,  174;  Lanney  vs.  Werry  et  al. 
Idem.  630. 

JVales,  for  the  defendants.  When  a  party  comes  into  a  court  of 
equity  asking  the  exercise  of  its  extraordinary  powers  to  protect  him 
against  a  legal  liability,  he  should  show  that  he  has  done  full  equity 
on  his  part.  How  does  Samuel  McDowell  present  himself  here? 
He  indorsed  a  note  for  his  brother,  a  man  in  insolvent  circumstances, 
the  money  was  obtained  from  the  bank  on  his  credit;  yet  from  the 
moment  his  liability  commenced  he  has  sought  to  evade  it.  He  de- 
fended the  original  suit;  judgment  went  against  him.  Then,  if  ever, 
he  should  have  set  up  this  defence  which  was  equally  available  at 
law  as  in  equity,  and  having  failed  to  do  so  he  is  concluded  by  the 
judgment.  A  scire  facias  was  issued  to  revive  this  judgment,  and, 
though  resisted,  judgment  again  went  against  him  in  that  action.  He 
then  brought  an  action  on  the  case  against  the  bank  for  not  permit- 
ting him  to  transfer  his  stock  though  he  was  thus  indebted  to  them, 
and  in  this  action  he  was  nonsuited.  He  then  went  into  chancery 
and  was  dismissed  from  that  court,  and  he  is  now  here  in  the  last 
stage  of  resistance  to  a  just  and  fair  claim.  I  consider.  First.  Whether 
the  arrangement  with  Thomas  McDowell  in  relation  to  protest- 
ing for  the  bank  was  an  agreement  to  give  time,  such  as  would  dis- 
charge the  indorser.  Is  any  such  agreement  proved?  It  is  distinctly 
denied  by  the  answer.  How  is  it  set  up?  By  the  oath  of  one  wit- 
ness, and  he  the  drawer  of  the  note  and  the  brother  of  the  party. 
The  rule  is  settled  that  one  witness  cannot  establish  a  fact  denied  by 
the  answer  and  there  is  no  distinction  in  this  respect  between  the  an- 
swers of  corporations  and  individuals.  A  corporation  necessarily 
answers  under  the  corporate  seal,  and  that  seal  makes  the  act  as 
obligatory  on  them  as  the  oath  of  an  individual  can  make  his  answer ; 
it  has  all  the  validity  and  effect  of  an  answer  on  oath.  If  there  is 
less  personal  responsibility  there  is  also  less  temptation  from  personal 
interest  to  depart  from  the  truth.  What  was  this  agreement  even  as 
spoken  of  by  Thomas  McDowell?  Certainly  not  an  agreement  to 
give  time.  No  time  was  given;  no  obligation  not  to  sue;  nothing 
in  fact  but  an  arrangement  by  which  the  bank  placed  business  in  the 
hands  of  McDowell,  on  the  understanding  that  a  part  of  the  fees 
should  be  paid  towards  satisfaction  of  this  debt.  Can  the  court  be- 
lieve that  the  bank  agreed  to  abandon  all  other  means  of  collecting 
this  debt  and  particularly  that  they  released  the  indorser  on  such  a 
loose  arrangement  as  this.  There  was  no  motive  for  such  an  agree- 
ment ;  no  consideration ;  if  made  it  would  have  been  a  nudum  pactum. 
McDowell  was  in  no  wise  bound  to  perform  his  part  of  the  agree- 
ment. He  was  insolvent;  had  taken  the  benefit  of  the  insolvent 
laws;  and  even  his  deposits  in  bank  had  to  be  guarded  by  a  special 
account  kept  in  his  official  character  as  the  bank  books  show.  Mere 
forbearance  to  sue  will  not  discharge  an  indorser.  There  must  be  fi" 
express  giving  of  time  by  a  legal  agreement,  i.  e.  with  consideration 
and  binding  on  the  parties.  This  arrangement  has  none  of  the  fea- 
tures of  such  an  agreement.  Chitty  on  Bills  378 ;  1  Law  Lib.  112. 
Second.  Did  the  conduct  of  the  bank  in  permitting  Thomas  McDow- 
ell to  check  out  the  funds  which  stood  to  his  credit  as  a  general  de- 
positer  in  the  bank  discharge  the  indorser?    I  consider  this  question 


McDowell  vs.  Bank  of  "Wil.  &  Bran.  373 

as  closed  by  the  decision  of  the  Superior  Court  in  the  suit  of  the  pres- 
ent complainant  against  the  bank.  The  court  lield  that  the  judg- 
ment changed  the  condition  of  the  parties  in  relation  to  this  matter; 
and  that  nothing  could  be  set  up  as  a  defence  to  the  judgment  but 
payment  or  release,  &c. 

Rogers:  on  the  same  side.  It  was  not  competent  for  the  bank, 
"without  the  direction  of  the  depositor  to  pay  these  deposits  to  the 
note.  "What  would  be  the  condition  of  our  banks  if  they  were  obliged 
to  seize  upon  the  funds  of  their  dealers  placed  on  general  deposite 
and  appropriate  them  to  the  payment  of  their  notes  whenever  they 
should  fall  due;  and  what  would  be  the  condition  of  depositors?  In 
every  instance  where  the  drawer  had  funds  in  bank  they  would  have 
to  be  applied  to  his  notes  or  his  indorsers  would  be  discharged.  This 
would  be  extremely  inconvenient  both  for  the  bank  and  its  depos- 
itors. Deposites  could  not  be  made  subject  to  such  embarrassments. 
The  nature  of  these  transactions  and  the  reason  of  the  thing  distin- 
guish it  from  the  common  case  of  an  individual  creditor  paying 
money  to  his  debtor.  Laiv  vs.  The  East  India  Co.  does  not  there- 
fore reach  this  case,  if  it  even  establishes  the  general  principles  con- 
tended for.  Both  the  payment  of  deposites  and  the  giving  of  time 
were  defences  available,  if  at  all,  in  the  action  on  the  note  or  on  the 
scire  facias.  In  the  latter  action  this  defence  was  set  up  and  is  still 
undecided.  The  arrangement  between  the  bank  and  Thomas  Mc- 
Dowell was  not  however,  a  giving  of  time.  It  might  have  been  deter- 
mined at  any  moi.ient  by  the  bank  proceeding  on  the  judgment  or 
the  notary  refusing  to  act;  or  even  while  the  notary  continued  to  act 
it  was  in  the  power  df  the  bank  to  proceed.  It  is  admitted  that 
McDowell  had  the  power  to  put  an  end  to  it  by  refusing  to  act 
and  the  power  must  have  been  reciprocal.  But  is  this  a  case  of 
principal  and  surety?  All  the  defence  of  the  other  side  proceeds 
on  this  idea.  In  the  origin  of  the  business  it  was  so;  but  at  the  mo- 
ment of  protest  and  notice  the  character  of  Samuel  McDowell  was 
changed;  he  was  no  longer  a  conditional  debtor;  it  was  his  debt  as  a 
principal.  Much  less  is  he  to  be  considered  a  surety  after  judgment. 
If  he  had  given  a  bond  to  the  bank  he  could  not  afterwards  set  up 
this  defence;  neither  can  he  after  giving  a  judgment.  The  judgment 
in  this  case  was  by  confession.  Not  only  was  the  character  of  prin- 
cipal and  surety  destroyed  by  the  judgment  but  the  cause  of  ac- 
tion was  destro5'ed;  the  note  itself  was  merged  in  the  judgment.  I 
can't  think  the  court  will  be  obliged  to  consider  the  remaining  ques- 
tion whether  a  court  of  equity  can  give  damages.  The  cases  cited 
by  Mr.  Bayard  do  not  establish  such  a  power  or  practice.  The  first 
is  a  case  of  fraud : —  in  the  other  there  was  a  suit  going  on  at  law  and 
the  parties  went  into  equity  for  a  discovery:  that  court  aided^them 
and  sent  them  back  to  law  to  establish  their  damages. 

Bayard,  in  reply:  I  agree  that  the  confession  of  a  judgment  is  a 
waiver  of  any  defence  existing  at  the  time ;  but,  of  course,  not  after. 
The  change  of  security  may  so  far  alter  the  character  of  the  parties 
as  that  you  cannot  investigate  that  character  in  a  court  of  law;  but 
the  rule  in  equity  is  different.  This  defence,  if  set  up  to  the  note, 
would  be  available  at  law  as  well  as  in  equity;  but  the  courts  of  law 
look  at  all  the  parties  in  a  judgment  as  principals  and  this  defence 
can't  be  set  up  there. 


374  McDowell  vs.  Bank  of  Wil.  &  Bran. 

The  Court  stopped  him  on  this  point.  A  court  of  law  cannot 
look  beyond  the  judgment,  either  to  investigate  the  character  of  the 
parties  or  the  nature  of  the  debt.  It  considers  it  as  a  debt  due  ab- 
solutely from  all  the  defendants  as  principals.  A  court  of  equity  has 
larger  power  and  better  means  of  investigating  these  matters  with  a 
view  not  merely  to  the  legal  liabilities  of  the  parties  but  to  the  par- 
ticular equity  of  the  case.  It  can  go  beyond  the  judgment  and  as- 
certain the  original  position  of  the  parties  deft,  and  their  liabilities 
not  only  to  the  creditor  but  as  between  each  other  as  principal  and 
surety.     See  Hardcastle  vs.  Commercial  Bank,     (a.) 

Bayard  resumed — I  proceed  then  to  the  question  of  fact.  Is  the 
agreement  for  giving  time  proved?  There  is  a  manifest  distinction 
between  the  answers  of  a  corporation  and  of  individuals.     The  for- 

(a)  Garrett  S.  Hardcastle,  assignee,  &c.  complainant  below,  plaintiff  in 
error  vs.  The  Commercial  Bank  of  Delaware  respondents  below,  de- 
fendants in  error. 

In  the  late  High  Court  of  Errors  and  Appeals.  June  Term,  1831.  Ap- 
peal from  Chancery,  Kent. 

All  the  Judges  (except  Rowland)  sat  —  it  being  an  appeal  from  the 
decree  of  the  late  Chancellor  Ridgely.  This  cause  was  argued  at  the  last 
term;  but  there  being  but  four  judges  present;  and  a  division;  a  re- 
argument  was  ordered. 
Frame,  Attorney  General,  for  api)ellant,  reads  the  bill. 
March  16,  1819.  Judgment  Commercial  Bank  vs.  J.  Clayton  and  G. 
Blackiston,  principals,  and  Jacob  Biddle,  surety.  Real  debt  $1900  00 
Goods  of  Biddle,  the  surety,  sold  on  this  judgment,  and  $815  93  of  the 
proceeds  applied  to  it.  September  15,  1821,  lands  of  Clayton  and  Black- 
iston, the  principals,  sold  on  this  judgment  for  $10336  51  more  than  suffi- 
cient to  pay  it.  November  5,  1821,  Biddle  assigned  his  interest  in  this 
judgment  to  Philip  D.  Fiddeman;  January  7,  1822,  Fiddeman  assigned 
to  Hardcastle.  Jacob  Biddle  was  indebted  to  the  Bank  in  other  sums  of 
money.  Frame  also  reads  the  answer.  Bank  insists  upon  the  right  to 
set  off  the  $815  93  against  debts  due  them  by  Biddle. 

Mr.  Frame.  The  lands  of  the  principals  being  sold  to  the  amount  of 
the  judgment,  part  of  which  the  surety's  goods  had  so  paid,  Biddle  be- 
came entitled  to  an  assignment  of  the  judgment,  to  the  amount  of  the 
sum  so  paid  by  him ;  and  was  entitled  to  the  lien  of  said  judgment  on  the 
proceeds  of  these  sales.  The  cause  was  decided  below  without  argument. 
A  surety  paying  the  debt  of  his  principal  stands  in  the  shoes  of  his  creditor 
not  only  as  to  the  principal  debt,  but  also  as  to  all  collateral  engagements. 
He  is  entitled  to  an  assignment  of  all  liens,  original  and  collateral.  Surety 
co-obligor  in  a  bond,  paying  it  off,  is  a  specialty  creditor  of  the  principal ; 
paying  off  a  judgment,  is  a  judgment  creditor  of  the  principal.  1.  Mad. 
Ch.  235;  11  Vezey  22;  2  Vernon  608;  1  Atk.  IBS;  1  Mad.  236;  2  Mad.  Rep. 
437;  1  John.  C.  R.  412 ;  4  John.  132,  530.  This  is  the  general  principle  of 
equity  previous  to,  and  independent  of,  our  act  of  Assembly.  Digest.  43. 
^Ve  don't  claim  specifically  under  this  a(;t,  but  upon  the  general  principle 
of  equity.  The  act  is  with  us;  but  it  is  not  the  origin  of  the  principle. 
Biddle  then  by  the  payment  of  this  money  stood  in  equity  as  the  plff.  in 
that  judgment  pro  tanto;  entitled  to  be  reimbursed  out  of  his  principal's 
lands  when  sold.  Fiddeman's  interest  and  right,  and  Hardcastle's,  are 
the  same  with  Biddle's.     The  right  of  the  Bank  to  set  off  this  fund 


McDowell  vs.  Bank  of  Wil.  &  Bran.  375 

mer  are  the  mere  suggestions  of  counsel.  Both  the  conscientious 
obligation  and  the  legal  sanction  are  less.     There  can  be  no  indict- 

against  Biddle's  debts  could  not  arise,  until  they  got  possession  of  the 
fund,  to  wit :  at  the  November  Term,  1821,  previously  to  which  all  the  in- 
terest of  Biddle  had  been  assigned  for  a  bona  fide  consideration  to  Fidde- 
man.  A  empowers  B  to  collect  a  sum  of  money,  and  then  assigns  to  C 
Afterwards  B  collects.  Can  he  set  off  debts  due  to  him  from  A  against 
the  claim  of  C  on  the  money  so  collected?     Certainly  not. 

Bates,  for  the  respondents.  The  Chancellor  decided  on  the  ground  that 
Biddle  had  not  paid  any  part  of  this  judgment  so  as  to  entitle  himself  to  an 
assignment  under  the  Act  of  Assembly;  and  that  there  being  an  equal 
equity  in  the  Bank  with  the  complainant,  and  the  Bank  in  possession  of 
the  fund  it  was  entitled  to  retain  it.  1st.  Biddle  has  not  entitled  himself 
to  an  assignment  under  the  act  of  Assembly.  Takes  this  distinction.  A 
surety  paying  only  a  part  of  a  judgment  is  not  entitled  to  an  assignment 
as  to  that  part,  but  only  upon  his  paying  the  whole,  or  the  balance ;  fully 
satisfying  the  debt.  This  is  the  meaning  of  the  act,  and  it  is  reasonable, 
for  otherwise  the  debtor  might  be  subjected  to  several  executions  by  dif- 
ferent plaintiffs  for  different  parts  of  the  same  debt ;  and  the  proceedings 
of  the  surety  might  embarass  the  creditor  in  the  collection  of  the  balance 
of  his  debt.  2nd.  But  none  of  the  cases  cited  establish  it  as  a  general 
principle  of  equity  that  a  surety  can  go  into  chancery,  and  compel  an  as- 
signment upon  paying  all  the  debt.  1  Vez.  sen.  339^,  2  do.  570.  But  if  the 
surety  is  entitled  to  an  assignment  where  is  the  case  showing  that  his  as- 
signee is  entitled  to  such  assignment  ?  All  the  equity  to  which  this  claim 
was  subject  at  the  date  of  the  assignment  follows  it  in  the  hands  of  the  as- 
signee. This  is  admitted.  Biddle  was  then  and  still  is  indebted  to  the 
Bank.  At  the  sale  the  Bank  purchased  the  land  of  Clayton  and  Blackiston, 
who  have  thus  always  had  an  equity  to  set  off  the  debts  due  them  from 
Biddle  against  his  interest  in  this  judgment  or  the  avails  of  these  lands. 

J.  A.  Bayard,  in  reply,  for  appellant.  Remarks  on  1  Vezey,  sen'r.  339. 
The  decision  in  that  case  is  opposed  to  the  principles  of  equity,  to  the  pre- 
vious decisions  and  to  the  dictum  of  Lord  Hardwick  himself  in  1  Atk. 
135.  This  and  the  other  cases  cited  by  Mr.  Bates  are  contradicted  by  the 
cases  in  2  Vern.  608;  11  Vezey  22;  1  Atk.  135;  2  Mad.  569;  1  Johns.  C. 
Rep.  409 ;  4  do.  132,  530,  8.  This  last  was  the  case  of  a  part  payment  only. 
There  is  no  reason  for  distinguishing  in  the  application  of  the  principle 
between  the  payment  of  a  part  and  the  whole.  The  equity  is  the  same. 
On  the  receipt  of  these  funds  by  the  Bank  after  the  sale  of  the  land  of 
Clayton  and  Blackiston  was  not  Biddle  or  his  assignee  entitled  to  an  as- 
signment of  the  judgment  ?  Does  his  owing  them  release  their  obligation 
to  assign  ?  If  Biddle  had  offered  to  pay  the  judgment  could  they  have  re- 
fused an  assignment  because  he  would  not  pay  his  other  debts?  Not  so. 
But  here  was  a  payment  by  Biddle  applicable  and  applied  to  this  judg- 
ment. They  were,  therefore,  bound  to  assign  and  they  might  then  seek 
the  possession  of  the  fund  in  payment  of  other  debts  by  attadiment  or 
otherwise.  "We  stand  in  the  situation  of  Biddle  on  the  5th  November, 
1821.  The  Bank  had  no  right  to  the  fund  until  after  the  November  Term 
—  26  November,  1821.  The  purchaser  was  not  bound  to  pay  the  money 
until  then,  nor  the  creditor  (the  Bank)  entitled  to  receive  it.  The  equity 
then  of  the  Bank  to  set  off  their  debts  against  this  sum  did  not  accrue  un- 
til after  he  had  assigned  it  to  Fiddeman.  Biddle  had  a  right  in  this  case 
to  prefer  Fiddeman,  one  of  his  creditors,  to  the  Bank,  another  creditor. 


876  ^McDowell  is.  Bank  of  Wil.  &  Brax. 

tnent  for  perjury.  The  reason  therefore  of  requiring  two  witnesses 
to  prove  a  fact  denied  in  the  answer  fails  —  there  is  no  oath  against 

I  have  considered  the  question  on  the  principles  of  equity  generally;  I 
now  refer  to  our  statute  and  I  contend  that  the  party  here  was  entitled  to 
an  assignment  under  the  equity  of  that  act.  There  is  no  ground  of  dis- 
tinction between  the  payment  of  the  whole  and  a  part.  I  admit  that  the 
whole  must  be  paid  before  an  assignment  can  be  demanded,  but  after  the 
debt  is  discharged,  the  surety  who  pays  a  part  of  it  has  a  right  to  an  as- 
signment pro  tanto.  A  different  construction  would  make  the  act  nuga- 
tory; for  if  the  principal  debtor  paid  ever  so  small  a  sum,  the  interest  for 
example,  which  in  nine  cases  out  of  ten  he  does,  the  surety  paying  all  the 
balance  would  have  no  remedy  under  this  act.  The  law  is  a  remedial  one 
and  ought  to  be  liberally  construed. 

Harrinotox,  Chief  Justice  of  the  Supreme  Court  delivered  the  opin- 
ion of  this  court : 

"  This  bill  was  filed  by  the  assignee  of  Jacob  Biddle,  claiming  to  stand 
in  the  condition  of  a  surety  who  had  paid  the  debt  of  his  principal,  and 
demanding  of  the  creditor  an  assignment  of  his  lien  against  the  prin- 
cipal, or  the  benefit  of  that  lien  to  the  amount  so  paid  by  the  surety. 
There  is  no  dispute  about  the  facts  alledged  as  the  foundation  of  this 
claim ;  the  only  doubt  is  about  the  equity  arising  upon  the  facts  and  the 
right  of  complainant  to  relief  in  this  suit  as  against  the  defts. 

The  Commercial  Bank  were  the  plffs.  in  a  judgment  dated  the  16  March, 
1819,  for  the  real  debt  of  $1900  00  against  James  Clayton  and  George 
Blackiston  as  principals  and  Jacob  Biddle  as  surety.  By  virtue  of  execu- 
tion process  on  this  judgment  the  goods  of  Jacob  Biddle  the  surety  were 
sold,  in  Ma5%  1821,  and  the  sum  of  $815  93  a  part  of  the  proceeds  of  the 
sale,  applied  to  this  judgment.  The  lands  of  Clayton  and  Blackiston,  the 
principals,  were  subsequently  sold,  on  the  25th  of  September,  1821,  and 
17th  January,  1822,  for  a  sum  sufficient  to  pay  off  this  judgment  and  all 
others  of  prior  and  equal  date  to  it,  and  to  leave  a  balance  more  than 
equal  to  the  sum  so  paid  by  Biddle  the  surety.  The  proceeds  of  the  sale 
went  into  the  hands  of  the  Bank  who  still  retains  them.  On  the  5th  No- 
vember, 1821,  Biddle,  for  a  valuable  consideration,  assigned  all  his  inter- 
est in  this  judgment  and  all  his  rights,  both  at  law  and  in  equity,  to  an 
assignment  or  otherwise  arising  from  the  fact  of  his  having  paid  the 
aforesaid  sum  of  money,  to  Philip  D.  Fiddeman,  who,  on  the  7th  Janu- 
ary, 1822,  assigned  to  the  complainant,  Garrett  S.  Hardcastle.  At  the 
date  of  the  assignment  to  Fiddeman,  Biddle  was  and  still  is  indebted  to 
the  Bank.  Under  these  circumstances  his  assignee  files  his  bill  asrainst 
the  Bank,  claiming  the  benefit  of  the  Bank's  judgment  against  Clayton 
and  Blackiston,  to  the  amount  of  $815  93;  or  rather  claiming  that  sum 
immediately  from  the  Bank,  so  much  having  been  made  by  virtue  of  the 
lien  out  of  the  lands  of  Clayton  and  Blackiston.  The  Bank  resists  this 
claim  on  the  ground  of  Biddle's  indebtedness  to  them  in  other  sums 
which  they  have  a  right  to  set  off  against  this  demand;  and  on  the  prin- 
ciple that  their  equity  being  at  least  equal  to  that  of  the  complainant, 
they  having  possession  of  the  fund  are  entitled  to  retain  it. 

The  general  principle  of  equity  undoubtedlv  is,  that  a  suretv  paying  the 
debt  of  his  principal  is  entitled  to  stand  in  the  condition  of  the  creditor; 
to  be  substituted  in  his  nlace  in  relation  to  the  principal  debtor,  is  en- 
titled to  the  benefit  of  all  remedies  which  the  creditor  may  have  against 
such  principal;  and  n:a5'  require  an  assignment  of  all  securities  either 


McDowell  vs.  Bank  of  Wil.  &  Bran.  377 

oath.  But  this  answer  does  admit  an  agreement.  Was  there  no 
consideration  for  it?    The  bank  got  the  services  of  Thomas  McDow- 

orif^inal  or  collateral  which  the  creditor  may  hold  against  the  principal  to 
perfect  his  remedy  for  the  demand  which  by  paying  the  debt  he  acquires 
against  the  principal.  This  is  a  rule  of  equity  independent  of  our  stat- 
ute; founded  on  the  first  principles  of  justice  and  propriety  that  he  who 
in  fact  owes  the  debt  shall  pay  it,  and  that  he  shall  be  as  much  bound  to 
pay  to  his  surety  who  is  compelled  by  the  creditor  to  discharge  the  debt  as 
he  was  boimd  to  pay  the  creditor  himself.  If  this  be  the  principle,  and 
this  its  foundation,  we  apprehend  that  there  is  no  propriety  in  distin- 
guishing in  the  application  of  the  rule  between  the  payment  of  the  whole 
debt  and  the  pajTnent  of  a  part, —  at  least  as  between  principal  and 
surety ;  but  as  regards  the  creditor  this  equitable  lien  cannot  be  enforced 
by  the  surety  until  the  wliole  debt  is  paid,  without  affecting  his  rights ;  he 
shall  not  therefore  be  compelled  to  assign  until  the  whole  debt  is  paid.  But 
this  being  done,  the  same  principle  of  equity  which  substitutes  the  surety 
paying  the  whole  debt  in  place  of  the  creditor,  will  equally  extend  and  ap- 
ply to  the  surety  paying  a  part,  pro  tanto,  to  the  extent  of  his  payment. 

With  these  principles  settled,  let  us  examine  the  situation  of  all  the  par- 
ties in  relation  to  their  rights  and  claims  on  the  5th  November,  1821, 
when  this  assignment  was  made  to  Fiddeman.  Biddle,  the  surety  of 
Clayton  and  Blackiston  had  paid  by  the  sale  of  his  goods  the  sum  of 
$815  93  to  the  Commercial  Bank  in  part  satisfaction  of  their  judgment 
against  Clayton  and  Blackiston.  At  the  time  of  the  payment  of  this 
sum  Biddle  acquired  a  claim  against  Clayton  and  Blackiston  to  the. 
amount  of  his  payment,  and  an  equitable  lien  on  their  land  through  the 
medium  of  this  judgment,  pro  tanto;  but  of  which  lien  he  could  not  avail 
himself  until  the  whole  debt  was  paid.  At  the  same  time  the  Bank  lost 
their  lien  on  the  land  of  Clayton  and  Blackiston  under  this  judgment,  to 
the  sam.e  amount.  The  debt,  as  to  the  Bank,  was  so  far  satisfied  and 
paid  and  they  had  no  right  to  enforce  this  judgment  against  Clayton  and 
Blackiston  to  any  greater  extent  than  the  balance  of  their  demand,  ex- 
cept for  the  benefit  and  through  the  medium  of  the  equitable  lien  of 
Jacob  Biddle ;  nor  to  receive  upon  this  judgment  the  proceeds  of  the  sale 
of  Claj-ton  and  Blackiston's  lands  to  any  larger  amount  than  the  balance 
due  them,  except  in  the  same  manner  for  the  benefit  of  Biddle  and  by  vir- 
tue of  his  equitable  lien.  It  is  important  in  this  case  to  ascertain  pre- 
cisely the  manner  in  which  the  Commercial  Bank  become  possessed  of 
this  fund,  and  their  riglits  over  it ;  for  it  is  from  this  possession  of  the 
fund  that  their  equity  to  retain  it  is  said  to  arise ;  and  if  it  should  appear 
that  they  got  possession  of  it  solely  through  the  medium  of  the  equitable 
lien  of  another  and  an  equally  meritorious  claimant  of  the  fund,  no  wise 
indebted  to  them,  we  shall  have  no  difficulty  either  in  balancing  the 
equities  in  point  of  time  or  grade,  or  in  settling  the  other  question  as  to 
their  right  of  offsetting  debts.  On  the  5th  of  November  then,  1821,  Jacob 
Biddle,  having  a  claim  against  Clayton  and  Blackiston ;  having  an  equita- 
ble lien  on  their  lands  to  a  certain  amount  through  the  medium  of  a 
judgment  in  the  name  of  the  Bank,  assigns  this  claim  and  lien  for  a 
valuable  consideration  to  Philip  D.  Fiddeman.  Was  there  any  thing  in 
this  transaction  illegal  or  unjust  as  it  regarded  the  Bank?  Did  it  de- 
prive them  of  any  rights,  or  any  remedies,  or  of  the  benefit  of  any  off- 
setts  or  discounts?  Not  so.  Biddle  had  no  claim  against  the  Bank,  and 
therefore  there  was  nothing  against  which  the  Bank  could  offset  claims 


878  McDowell  vs.  Bank  or  Wil.  &  Bran. 

ell  as  notary  by  the  agreement  which  they  could  not  have  got  by  any 
legal  process.  He  was  insolvent.  His  person  was  discharged  from 
arrest.  This  then  was  a  sufficient  consideration.  And  if  they  had 
proceeded  for  the  judgment  in  violation  of  this  agreement  any  court 
would  have  stayed  the  execution.    I  did  say  that  as  long  as  McDow- 

on  him ;  but  he  had  a  claim  against  Clayton  and  Blackiston  which  any  of 
his  creditors  were  equally  entitled  to  obtain  an  assignment  of  as  the 
Bank,  and  which  he  chose  to  assign  to  Philip  D.  Fiddeman.  The  assign- 
ment then  was  good,  and  it  carried  the  interest  of  Mr.  Biddle  in  this 
judgment.  On  the  25th  of  September,  1821,  the  sheriff  sold  the  lands  of 
Clayton  and  Blackiston  bound  by  this  judgment  for  a  sum  sufficient  to 
pay  the  whole  amount  of  it,  and  all  other  judgments  of  prior  or  equal 
date,  and  he  returned  this  sale  to  the  November  term,  1821,  which  was 
not  earlier  than  the  26th  of  November  of  that  year.  After  the  26th  of 
November  then,  this  judgment  is  to  be  fully  satisfied;  and  there  are 
funds  of  the  principal  debtors  sufficient  to  pay  off  not  only  the  balance 
due  the  Bank,  but  the  sum  already  paid  by  the  surety  and  now  due  to  his 
assignee.  Who  then  is  entitled  to  the  money  ?  Had  the  Bank  any  claim 
to  it  further  than  to  the  amount  of  the  balance  impaid  to  them  ?  And 
were  they  not  bound  immediately  on  the  receipt  of  this  balance,  accord- 
ing to  the  principles  already  settled,  to  substitute  the  surety  in  their 
stead  as  it  regards  the  amount  paid  by  him,  and  give  him  the  benefit  of 
the  judgment  lien?  If  they  were  so  bound  equity  will  consider  that  as 
done  which  the  party  was,  according  to  equitable  principles,  bound  to  do; 
and  will  regard  this  money  as  properly  payable  to  the  person  entitled  to  it 
by  assignment  from  the  surety.  A  majority  of  the  court  are  therefore  of 
opinion,  two  members  dissenting  (Johns  Ch'r.  and  Stout)  that  the  com- 
plainant below,  Garrett  S.  Hardcastle,  who  stands  in  the  same  case  with 
Philip  D.  Fiddeman,  is  entitled  to  the  sum  so  paid  by  Biddle;  that  the 
Bank  '  aving  got  possession  of  the  fund  at  a  time  when  it  belonged  to  Fid- 
deman is  not  entitled  to  set  off  against  his  claim  the  debts  due  to  them 
from  Biddle,  and  that  there  is  no  equity  arising  to  them  from  their  pos- 
session of  the  fund  which  will  countervail  the  equity  of  Biddle's  assignee, 
or  prevent  a  court  of  equity  from  granting  him  the  relief  prayed  for; 
and  consequently  that  the  decree  of  the  chancellor  must  be  reversed. 

"We  have  purposely  considered  this  case  upon  general  principles  of  equi- 
ty independent  of  our  act  of  Assembly,  as  we  deem  it  unnecessary  in  this 
case  to  decide  upon  the  extent  of  that  act ;  but  the  strong  inclination  of  a 
majority  of  the  court  is  to  give  that  law  a  liberal  construction,  co-extensive 
with  the  principles  here  announced,  both  as  regards  the  payment  by  a  sure- 
ty of  the  whole  of  the  debt  of  his  principal,  and  the  pajmaent  of  a  part 
only  of  that  debt.  The  wording  of  the  act,  which  was  not  particularly  re- 
ferred to  in  the  argument,  is  at  least  not  opposed  to  the  extension  of  a 
beneficial  rule  equally  applicable  in  its  justice  to  the  one  case  as  the  other. 

This  co\irt  does  therefore  order,  adjudge  and  decree  that  the  decree  of 
the  chancellor  in  this  cause  be  reversed;  and  that  the  respondents,  the 
Commercial  Bank,  pay  to  the  complainant  Garrett  S.  Hardcastle  the  sum 
of  $815  93  with  interest  from  the  date  of  the  payment  of  this  sum  to  the 
Bank  by  the  sale  of  Biddle's  goods;  and  that  the  respondents  pay  the 
costs  in  the  court  below,  and  in  this  court. 

Decree  reversed. 
Frame  and  Bayard,  for  api)ellant. 
Bates,  for  respondents. 


I 


McDowell  vs.  Bank  of  Wil.  &  Bran.  379 


ell  performed  his  part  the  Bank  could  not  proceed  against  him,  and 
Mr.  Rogers  infers  that  as  he  had  the  power  to  put  an  end  to  it,  so 
had  the  Bank.  Non  sequitur  as  to  the  surety.  The  making  of  the 
agreement  discharged  the  indorser;  it  is  only  the  performance  of  it 
that  would  discharge  the  maker.  The  length  of  time  given  is  not 
important:  if  the  Bank  for  one  moment  put  it  out  of  their  power 
to  proceed  against  the  drawer  the  indorser  was  discharged.  Pay- 
ment of  deposits.  I  hold  that  deposits  made  in  a  Bank  and  passed 
into  a  general  account  between  the  depositor  and  the  Bank  become  a 
debt  due  from  the  latter  to  the  former  against  which  they  have  the 
right  to  set  off  any  debt  of  the  same  general  character  which  may  be 
due  from  him  to  them.  I  would  rest  the  whole  case  on  this  point. 
They  are  not  bound  to  exercise  the  right  of  set  off  as  against  the 
principal,  but  if  they  do  not  the  surety  is  discharged.  For  it  is 
established  on  obvious  principles  of  equity  that  if  I  have  a  demand 
against  one  person  as  a  principal  debtor  and  another  who  is  merely 
hie  surety,  if  a  fund  comes  into  my  hands  sufficient  to  pay  it,  my  dutv 
to  the  surety  requires  that  I  shall  retain  that  fund,  and  if  I  suffer 
it  to  go  out  of  my  hands  he  is  discharged.  I  will  not  stop  to  exam- 
ine the  pretence  that  these  deposits  were  made  in  a  special  character. 
It  is  too  slight  to  found  an  argument  upon;  and  if  made  out  it  would 
establish  a  case  of  fraud  to  which  the  Bank  would  necessarily  be  a 
party:  a  mere  cover  to  defraud  McDowell's  creditors.  Will  this 
court  allow  damages?  To  say  that  the  case  cited  by  me  is  a  case  of 
fraud  is  no  answer  to  it.  I  cited  it  not  because  it  was  a  case  of  fraud 
but  because  it  established  that  in  a  proper  case  where,  either  because 
of  fraud  or  from  other  circumstances  a  party  had  not  relief  at  law,  a 
court  of  equity  could  and  would  give  damages.  The  other  case  is 
mistaken  by  Mr.  Rogers. 

Judge  Black  delivered  the  opinion  of  the  court. 
Black,  Justice: 

On  the  6th  of  October,  1817,  Thomas  McDowfill  made  his  promis- 
sory note  for  $500,  payable  in  sixty  days  to  the  order  of  his  brother, 
Samuel  McDowell,  which  the  latter  indorsed,  and  which  was  dis- 
counted by  the  Bank  of  Wilmington  and  Brandywine:  It  was  duly 
protested  at  maturity  for  non  payment,  and  a  suit  instituted  on  it  by 
the  bank  against  the  indorser,  in  the  supreme  court,  to  March  T. 
1818,  in  which  there  was  a  judgment  by  confession  on  April  7,  1819, 
for  $541  16.  A  scire  facias  issued  on  this  judgment  to  Nov.  T.  1829, 
to  which  the  matters  hereinafter  stated  in  relation  to  the  deposites 
made  in  the  bank  by  Thomas  McDowell,  and  the  agreement  between 
him  and  the  bank,  made  in  June,  1827,  were  (inter  alia)  specially 
pleaded.  To  this  plea  the  plff.  in  the  action  demurred,  and  judg- 
ment was  rendered  on  the  demurrer  for  the  demurrants,  on  Novem- 
ber 6th,  1830,  on  the  ground  that  the  original  judgment  could  not  in 
a  court  of  law  be  held  to  be  discharged  by  parol  or  matters  in  pais, 
but  only  by  a  release  or  actual  payment;  that  if  such  defence  could  be 
proved,  it  could  only  avail  or  be  entertained  in  a  court  of  equity. 
Both  drawer  and  indorser  took  the  benefit  of  the  insolvent  acts  be- 
tween 1817  and  1827.  In.  August,  1819,  Thomas  McDowell  opened 
an  account  in  the  Bank  of  Wilmington  and  Brandywine,  and  his  de- 
posites between  that  date  and  June,  1822,  exceeded  $4000;  from 


380  McDowell  vs.  Bank  of  Wil.  &  Bran. 

June,  1822,  to  June,  1827,  they  were  above  $9000;  after  June,  1827, 
they  were  something  over  $200.  The  monies  deposited  were  drawn 
out,  from  time  to  time,  by  Thomas  McDowell,  on  his  checks.  In 
the  account  of  Thomas  McDowell,  as  it  stands  in  the  ledger  of  the 
bank,  the  letters  "  J.  P."  are  added  to  his  name,  from  August,  1819, 
to  June,  1822.  In  none  of  the  accounts  subsequent  to  this  date  are 
these  letters  added,  but  the  accounts  stand  in  the  name  of  "  Thomas 
McDowell.  The  bank  insist  that  this  account  kept  with  them  by 
Thomas  McDowell  was  kept  in  his  official  character  as  a  justice  of 
the  peace,  (he  holding  that  office)  and  was  a  special  account  in  that 
character,  and  not  a  general  account  embracing  his  own  money,  and 
that  it  continued  in  that  character  during  the  entire  period  up  to 
1831,  notwithstanding  the  letters  "  J.  P."  were  not  appended  to  the 
depositor's  name  in  the  ledger  after  June  1822.  Two  bank  books, 
such  as  are  furnished  by  the  bank  to  those  who  keep  accounts  with 
them,  containing  entries,  made  by  the  officers  of  the  bank,  of  monies 
deposited  and  checks  drawn,  from  October,  1820,  to  August,  1831, 
are  produced  in  evidence,  which  are  thus  commenced :  "  Dr.  the 
Bank  of  Wilmington  and  Brandywine  in  account  with  Thomas  Mc- 
Dowell, Cr."  In  neither  of  these  books  are  the  letters  "  J.  P."  added 
to  the  name  of  Thomas  McDowell.  The  checks  drawn  during 
the  period  of  the  account  were  signed  Thomas  McDowell,  without 
any  addition.  In  the  scratcher  of  the  bank,  in  which  the  original 
entries  of  deposites  are  made,  some,  and  perhaps,  most  of  the  depos- 
ites  made  in  the  year  1819  are  entered  to  the  credit  of  "Thomas 
McDowell,  J.  P."  but  there  are  none  so  entered  after  1819.  After 
the  year  1821  a  number  of  notarial  fees  are  credited  Thomas  Mc- 
Dowell in  his  bank  account  as  deposited.  The  balances  in  favor  of 
Thomas  McDowell  on  inspecting  the  books  appear  at  times  to  have 
been  considerable;  on  some  occasions  $400,  and  on  one  upwards  of 
$500.  His  fees  for  protesting,  prior  to  June,  1827,  amounted  to 
$495  99,  and  since  that  time  to  $378  49,  of  which  last  sum  $241  01 
have  been  applied  to  his  note,  under  the  arrangement  hereafter  men- 
tioned, and  $137  48  deposited  and  carried  to  his  credit  in  his  account 
with  the  bank  before  referred  to. 

In  June,  1827,  at  the  instance  of  the  bank,  an  arrangement  was 
made  between  them  and  Thomas  McDowell,  by  which  it  was  agreed 
that  the  latter  should  receive  of  his  notarial  fee  for  each  note  pro- 
tested  by  him  for  the  bank,  sixty-two  and  a  half  cents  in  cash,  and 
that  the  residue  of  each  fee  should  be  applied  to  his  note.  The  ar- 
rangement to  this  extent  is  admitted  by  the  answer.  The  fees  of  pro- 
test under  this  agreement  amounted  as  before  stated  to  $378  49,  it 
having  been  acted  on  by  the  parties  for  several  years.  The  bank  by 
its  answer  denies  that  this  arrangement  was  to  continue  until  the 
amount  due  on  the  protested  note  was  paid,  or  that  it  was  not  to  re- 
quire of  Thomas  McDowell  payment  in  any  other  manner  while  he 
continued  to  perform  his  part  of  the  agreement.  On  the  other  hand, 
Thomas  McDowell,  who  has  been  examined  as  a  witness  in  this  cause, 
swears  "  that  the  arrangement  was  to  continue  until  the  debt  was 
paid,  and  that  it  was  expressly  understood  at  the  time  of  making  it, 
that  recourse  was  not  to  be  had  against  the  indorser." 

In  February,  1829,  the  complainant  was  owner  of  thirty-six  shares 
in  the  Bank  of  Wilmington  and  Brandywine,  which  he  contracted 


McDowell  vs.  Bank  of  Wil.  &  Bran.  381 

through  his  brother  to  sell  to  Eobert  Porter  at  ten  dollars  per  share. 
The  bank  refused  to  permit  the  stock  to  be  transferred,  on  the  ground 
that  he  was  indebted  to  the  bank  on  the  aforesaid  judgment,  and  that 
by  a  by-law  of  the  corporation  no  stockholder  who  is  indebted  to  the 
bank  is  at  liberty  to  transfer  any  part  of  his  stock  while  his  debt  re- 
mains unpaid.  To  recover  damages  for  the  injury  sustained  by  this 
refusal,  the  complainant  instituted  an  action  in  the  superior  court 
against  the  bank,  of  which  a  trial  was  had.  The  bank  relied  on  the 
aforesaid  judgment  and  by-law  as  a  defence  to  this  action,  which  the 
complainant  attempted  to  meet  by  proof  of  the  arrangement  of  June, 
]827,  and  the  deposites  made  by  Thomas  McDowell  in  the  bank,  but 
was  overruled  by  the  court,  on  the  ground  that  the  judgment  being  a 
debt  of  record,  its  discharge  in  a  court  of  law  could  only  be  shown 
by  a  release  or  actual  payment,  and  that  the  judgment  being  a  legal 
demand,  could  not  in  that  court  be  successfully  resisted  on  equitable 
grounds,  however  strong;  that  such  defences  could  avail  in  equity 
alone.  After  the  expression  of  this  opinion  by  the  court,  who  also 
recognized  the  validity  and  legality  of  the  by-law,  the  plff .  submitted 
to  a  nonsuit. 

The  value  of  each  share  of  stock  in  the  Bank  of  Wilmington  and 
Brandywine  was  by  act  of  the  Legislature  in  February,  1829,  fixed  at 
seven  dollars.  The  shares  were  to  be  filled  up  to  thirty  dollars, 
stockholders  to  have  the  preference;  but  if  they  declined,  a  further 
stock  was  to  be  created  to  the  amount  necessary  to  fill  up  the  orig- 
inal capital.  The  complainant  declined  filling  up  his  shares,  on  the 
ground,  as  he  alledges,  of  the  power  claimed  by  the  bank  over  his 
stock.  The  value,  in  August,  1833,  of  the  full  shares  was  $40  50, 
or  $10  50  above  par,  and  of  the  old  shares  not  filled  up,  $10  50,  or 
$3  50  above  par.  The  complainant  cannot  now  fill  up  his  shares,  as 
the  time  allowed  the  old  stockholders  to  do  this  has  passed.  The  bill 
prays  that  the  judgment  against  Samuel  McDowell  may  be  decreed 
to  be  jentered  satisfied  and  a  perpetual  injunction  awarded,  and  that 
he  may  be  compensated  for  the  damage  he  has  sustained  by  the  re- 
fusal to  permit  the  transfer  of  the  bank  stock.  On  hearing,  the  chan- 
cellor dismissed  the  bill. 

An  indorser  is  a  conditional  debtor  up  to  the  period  at  which  he 
becomes  fixed  by  a  due  demand  and  notice ;  from  that  time  he  becomes 
a  principal  debtor,  to  whom  alone  the  holder  may  resort.  In  a  suit 
at  law  upon  the  note  he  may  successfully  defend  himself  by  showing 
that  his  rights  have  been  fettered,  abridged,  or  suspended.  If,  how- 
ever, judgment  be  obtained  against  him,  this  can  only  be  discharged 
or  gotten  rid  of  at  law  by  showing  the  debt  to  be  paid  or  released, 
the  original  character  of  the  liability  .being  merged  in  the  judgment, 
a  court  of  law  cannot  recognize  him  in  the  character  of  a  surety. 
That  court  is  estopped  by  the  judgment,  and  cannot  look  beyond  it. 
But  this  rule  does  not  prevail  in  a  court  of  equity,  which  will  look 
beyond  the  judgment  and  inquire  into  the  origin  and  nature  of  the 
transaction  and  the  condition  and  character  of  the  parties,  and  if  the 
original  condition  and  character  was  that  of  surety,  extend  to  him  the 
benefit  of  those  equitable  principles  which  the  character  of  a  surety 
oroperly  may  demand.  In  the  court  of  chancery,  therefore,  and  in 
this  court,  on  an  appeal  from  the  court  of  chancery,  an  indorser  will 
"be  viewed  as  a  surety  and  entitled  to  such  relief  as  a  surety  may  on 


382  McDowell  vs.  Bank  of  Wil.  &  Bran. 

principles  of  equity  claim,  notwithstanding  a  judgment  may  be  ob- 
tained against  him. 

The  complainant  claims  to  be  relieved  from  this  judgment,  first, 
on  the  ground  that  the  bank,  since  the  judgment  was  obtained,  have 
had  in  their  possession  and  under  their  control  funds  of  the  drawer  to 
an  amount  more  than  sufficient  to  have  discharged  this  judgment, 
which  they  had  the  power  and  which  it  was  their  duty  to  have  ap- 
propriated to  the  judgment,  but  which  they  have  paid  to  the  drawer, 
and  that  by  so  doing  the  claim  of  the  bank  is  as  against  Samuel  Mc- 
Dowell equitably  discharged. 

The  bank  alledges  that  the  account  with  the  bank  by  Thomas  Mc- 
Dowell was  not  a  general  account,  but  a  special  one  with  him  as  jus- 
tice of  the  peace,  comprising  only  the  deposit  of  monies  received  by 
him  in  that  character,  and  not  his  individual  funds.  The  only  proof 
produced  by  the  defts.  to  sustain  this  position  is,  that  during  the  year 
1819  most  if  not  all  the  deposits  appear  from  the  scratcher  or  original 
book  of  deposit  to  be  placed  to  the  credit  of  "  Thomas  McDowell,  J. 
P."  and  that  in  the  ledger  of  the  bank,  from  August,  1819,  to  June, 
1822,  his  account  has  the  heading  of  "  Thomas  McDowell,  J.  P." 
On  the  other  hand,  in  none  of  the  accounts  in  the  ledger  since  June, 
1822,  are  the  letters  "J.  P."  added,  but  they  stand  merely  in  the 
name  of  Thomas  McDowell.  The  bank  books  furnished  by  the  bank 
to  Thomas  McDowell  as  a  depositor,  in  which  the  officers  of  the  bank 
state  the  account  and  make  the  entries,  and  which  should  contain  the 
specific  special  character  of  the  account,  if  it  was  understood  by  the 
parties  to  be  a  special  and  not  a  general  one,  contains  no  designation 
of  this  kind.  In  each  book  it  stands  as  a  general  account  —  "  Dr.  the 
Bank  of  Wilmington  and  Brandywine,  in  account  with  Thomas  Mc- 
Dowell, Cr."  Nothing  is  added  to  show  that  it  was  with  him  as  a 
justice  of  the  peace,  or  in  any  other  character  than  that  of  the  ordi- 
nary general  account  kept  by  a  depositer  with  the  bank.  It  also  ap- 
pears from  the  checks  drawn  by  Thomas  McDowell,  that  they  are 
signed  merely  Thomas  McDowell,  without  any  addition  thereto  of 
J.  P.  or  of  any  thing  else.  It  also  appears  that  the  notarial  fees  due 
him  by  the  bank  were  deposited  to  his  credit  in  these  accounts;  these 
certainly,  as  the  bank  well  knew,  did  not  belong  to  an  account  of  jus- 
tice of  the  peace.  In  addition  to  all  this,  Thomas  McDowell,  in  his 
deposition,  swears  that  he  had  no  separate  account  as  justice  of  the 
peace,  but  that  any  moneys  received  by  him  in  his  official  capacitv 
and  deposited  in  the  bank  were  deposited  and  credited  to  him  as  his 
own  personal  funds.  That  the  bank  could  not  have  received  it  as  a 
special  account,  but  a  general  one,  is  very  strongly  to  be  inferred 
from  their  payment  of  the  checks  drawn  by  Thomas  McDowell, 
without  any  addition  to  show  it  was  drawn  on  a  special  fund.  In 
our  judgment  it  can  only  be  considered  as  a  general  account  of  Thomas 
McDowell  with  the  bank,  such  as  is  usually  kept  by  depositers 
with  a  bank.  It  was  under  the  entire  control  of  Thomas  McDowell, 
individually.  His  creditors  might  have  attached  any  money  due  on 
it.  The  bank  had  the  right  to  appropriate  to  the  note  indorsed  by  the 
complainant,  or  any  other  debt  due  to  it,  from  Thomas  McDowell,  so 
much  of  his  money  remaining  in  bank  to  his  credit  on  this  bank  ac- 
count as  might  be  sufficient  for  this  purpose;  and  as  they  have  neg- 
lected to  make  this  appropriation  to  the  note,  the  important  question 


I 


McDowell  vs.  Bank  of  Wil.  &  Bran.  383 

arises,  whether,  in  relation  to  the  complainant,  it  was  not  the  duty 
of  the  bank  to  have  done  so,  and  whether  by  neglecting  this  duty  and 
paying  over  to  Thomas  McDowell  the  money  in  their  hands  belong- 
ing to  him,  the  complainant  is  not  in  equity  held  discharged  from  all 
claim  by  virtue  of  the  aforesaid  judgment.  On  what  principle  of 
justice  or  equity  can  a  creditor  whose  debt  is  due  and  the  payment 
of  which  may  be  enforced,  and  who  has  on  a  running  account  money 
in  his  hands  belonging  to  the  debtor,  the  means  of  payment  entirely 
under  his  own  control,  and  at  his  disposition;  who  refuses  or  neglects 
to  make  the  appropriation  or  set-off,  and  voluntarily  hands  over  to 
the  debtor  the  money  which  he  might  have  retained;  upon  what 
principle  of  justice  can  such  a  creditor  in  a  court  of  equity  claim  to 
hold  the  surety  bound,  after  the  debt  had  been  in  point  of  fact  paid, 
if  the  creditor  had  elected  to  say  so  or  to  so  consider  it.  The  cred- 
itor could  have  set  off  the  debt  and  charged  it  in  the  account,  and  hav- 
ing the  power  was  it  not  his  duty  to  do  so  in  justice  to  the  surety. 
If  Thomas  McDowell  had  sued  the  Bank  for  any  balance  of  the  ac- 
count, he  would  have  been  compelled  to  have  allowed  this  note  as  a 
set  off.  Suppose,  in  such  a  suit,  the  Bank  had  chosen  not  to  have 
pleaded  this  note  as  a  discount,  and  the  entire  balance  of  account 
thus  allowed  by  them  to  be  recovered  —  would  not  the  judgment 
against  Samuel  McDowell  have  been  in  a  court  of  equity  held  as 
satisfied  by  such  a  course  of  conduct?  Deciding  as  we  must  do  on 
equitable  principles,  we  consider  that  the  right  of  set  off  or  appro- 
priation of  these  moneys  in  Bank  to  the  note  of  Thomas  McDowell, 
became  a  duty  towards  the  complainant,  in  order  to  protect  him  from 
loss,  and  as  the  deposites  amounted,  in  the  course  of  the  years  of 
which  an  account  is  given,  to  several  thousand  dollars,  and  the  bal- 
ances at  times  as  high  as  $400  and  $500,  and  the  means  of  payment 
at  the  will  of  the  creditor,  we  consider  that  the  Bank  cannot,  under 
these  circumstances,  be  allowed  to  enforce  against  Samuel  McDowell 
the  judgment  obtained  against  him.  The  decision  of  the  master  of 
the  rolls  in  the  cause  of  Law  vs.  The  East  India  Co.;  4  Vezey 
330,  (if  an  authority  were  wanting  for  so  obvious  a  principle  of  jus- 
tice) fully  sustains  the  conclusion  to  which  the  court  have  come.  In 
that  case  the  agents  of  the  company  had  paid  into  the  hands  of  the 
administrator  of  the  principal  debtor  a  large  sum  of  money  supposing 
that  sum  of  money  really  to  be  due  from  the  company.  In  relation 
to  the  sum  thus  paid  the  master  of  the  rolls  says  "  nothing  is  more 
clear  than  as  between  them  (the  company)  and  the  surety,  they  could 
never  demand  that  sum." 

The  complainant  claims  relief  from  this  judgment,  secondly,  on 
the  ground  of  the  arrangement  between  the  Bank  and  Thomas  Mc- 
Dowell, in  June,  1827,  by  which,  as  he  alleges,  time  was  given  to  the 
principal  to  pay  the  note  and  the  rights  of  the  surety  impaired. 
Thomas  McDowell  swears  that  the  arrangement  as  to  protesting  was 
to  continue  till  his  debt  was  paid.  If  such  was  the  arrangement  then 
the  period  of  payment  was  postponed  and  the  rights  of  Samuel  Mc- 
Dowell were  so  far  impaired  as  that  he  would  no  longer  be  held  re- 
sponsible in  equity  on  this  judgment,  for  the  consideration  of  per- 
sonal services  which  Thomas  McDowell  was  to  render,  and  which 
the  Bank  could  not  compel,  was  a  sufficient  corisideration  for  the 
time  granted.     It  is  true  Thomas  McDowell  is  the  only  witness  as 


884  McDowell  vs.  Bank  of  Wil.  &  Bean. 

to  this  arrangement,  but  there  are  concurring  and  corroborating  cir- 
cumstances, which,  were  it  necessary,  would  perhaps  lead  the  court 
to  say  would  countervail  the  positive  denial  of  the  fact  in  the  an- 
swer, even  if  it  had  been  under  oath.  From  the  view  we  have  taken 
of  this  case  it  does  not  become  necessary  for  us  to  decide,  whether 
the  oath  of  one  witness  will  not  avail  over  the  denial  of  an  answer 
of  a  corporation  under  seal.  The  reason  of  the  rule  that  has  ob- 
tained is,  that  you  have  oath  against  oath,  and  that  in  such  case 
further  proof  or  corroborating  circumstances  are  called  for,  or  the 
answer  will  neutralize  the  oath  of  a  single  witness.  This  reason  does 
not  exist  in  the  case  of  a  corporation  and  we  confess  we  entertain 
strong  doubts  whether  the  testimony  of  one  witness  should  be  an- 
nulled by  an  answer  wanting  the  sanction  of  an  oath. 

We  are  of  opinion  on  a  consideration  of  the  whole  case,  that  the 
decree  of  the  chancellor  is  erroneous  and  should  be  reversed,  and 
that  the  defts.  be  perpetually  enjoined  from  proceeding  on  the  afore- 
said judgment  against  the  complainant.  We  decline  ordering  an 
issue  as  asked,  although  we  don't  doubt  the  power  of  the  court  to  do 
BO  in  a  case  like  the  present,  if  we  thought  it  necessary,  as  we  have 
enough  before  us  to  attain  what  is  equitable  between  the  parties.  By 
refusing  to  permit  the  transfer,  the  defts.  have  deprived  the  com- 
plainant of  interest  on  $360  the  price  at  which  the  stock  was  sold, 
from  February,  1829.  This  is  all  that  in  equity  he  is  entitled  to. 
He  had  sold  the  stock  and  the  right  of  filling  it  up  would  on  the 
transfer  have  gone  to  the  assignee  and  would  not  have  belonged  to 
him.  In  this  respect  he  is  not  damnified.  The  shares  of  stock,  ac-* 
cording  to  the  proof,  is  now  worth  more  than  ten  dollars.  We  de- 
cree him  interest  on  $360,  from  the  tenth  of  February,  1829,  to  the 
tenth  of  January,  1834,  $109  80,  the  date  of  the  last  dividend.  The 
dividends  between  these  periods  to  be  retained  by  the  Bank  and  all 
subsequent  dividends  to  belong  to  complainant.  The  defts.  to  pay 
costs. 

The  following  decree  was  entered  on  the  record: 
"  And  now  to  wit,  this  ninth  day  of  June,  A.  D.  1834,  this  cause 
having  come  on  to  be  heard  before  the  court  of  Errors  and  Appeals 
at  the  present  term  thereof,  and  the  causes  of  appeal,  pleadings, 
proofs  and  exhibits  having  been  read  and  heard  by  the  court,  and 
the  mittters  of  appeal  being  debated  by  counsel;  it  is  ordered,  ad- 
judged and  decreed  by  the  court  that  the  decree  of  the  chancellor, 
bearing  date  the  24th  day  of  February,  A.  D.  1834,  dismissing  the 
bill  of  complaint  of  Samuel  McDowell  the  complainant  in  the  court 
of  Chancery  be  reversed.  And  it  is  further  ordered  and  adjudged 
by  the  court,  that  the  president,  directors  and  company  of  the  Bank 
oif  Wilmington  and  Brandywiue  the  respondents  in  this  appeal  be 
perpetually  enjoined  and  forever  restrained  from  any  further  pro- 
ceedings at  law  against  the  said  Samuel  McDowell  on  the  judgment 
rendered  against  him  on  the  seventh  day  of  April,  A.  D,  1819,  at 
their  suit  in  the  late  Supreme  Court  of  the  state  of  Delaware,  held 
at  Newcastle  for  Newcastle  county,  of  the  March  term,  A.  D.  1819, 
for  the  Bwm  of  five  hundred  and  forty-one  dollars  and  sixteen  cents, 
numbered  on  the  docket  of  said  court  No.  119,  of  the  March  term, 
A.  D.  1819,  and  now  remaining  of  record  in  the  Superior  Court  of 


w 


ElDGEWAY  AND  FeWBOLD  VS.  NeWBOLD.  385 


the  said  county  of  Newcastle.  And  it  appearing  to  this  court  that 
the  sale  of  the  thirty-six  shares  of  the  stock  of  the  Bank  of  Wil- 
mington and  Brandywine  standing  in  his  name  on  the  books  of  the 
said  Bank  made  by  the  said  Samuel  McDowell  to  Eobert  Porter,  in 
the  month  of  January,  A.  D.  1829,  for  the  sum  of  three  hundred  and 
sixty  dollars,  was  without  sufficient  cause  and  inequitably  hindered 
and  prevented  by  the  said  respondents  and  that^  the  dividends  on  the 
said  stock  do  not  amount  to  as  great  a  sum  as  the  interest  upon  the 
said  purchase  money,  it  is  further  ordered  and  decreed  that  the  said 
respondents  pay  to  the  said  Samuel  McDowell  the  sum  of  one  hun- 
dred and  eight  dollars  in  lieu  of  the  dividends  declared  on  the  said 
thirty-six  shares  of  stock  between  the  month  of  January,  A.  D.  1889, 
and  the  month  of  February,  A.  D.  1834,  and  that  the  said  dividends 
declared  on  the  said  thirty-six  shares  of  stock  between  those  periods 
be  retained  by  the  said  respondents  for  the  use  and  benefit  of  the  said 
Bank  of  Wilmington  and  Brandywine,  leaving  to  the  said  Samuel 
McDowell  his  legal  and  equitable  rights  as  to  the  sale  and  transfer 
of  the  said  thirty-six  shares  of  stock,  and  of  demanding  and  receiving 
any  dividends  ihat  have  been  or  may  be  declared"  thereon  since  the 
month  of  January,  A.  D.  1834;  and  it  is  further  ordered  and  ad- 
judged by  this  court  that  the  said  respondents  pay  the  said  sum 
hereby  decreed  to  be  paid,  and  also  the  costs  of  this  suit  in  the  court 
of  Chancery,  and  the  £osts  on  this  appeal  in  ninety  days  from  the 
date  of  this  decree,  or  that  a  writ  of  sequestration  issue/' 

J.  A.  Bayard,  for  appellant. 

Wales  and  Rogers,  for  respondents. 


JACOB  EIDEGWAY  and  ANTHONY  T.  NEWBOLD  vs.  EUPHE- 

MIA  NEWBOLD. 

Dower  may  be  assigned  against  one  of  several  tenants  in  common  where  there 

has  been  a  severance. 
A  party  defendant  may  be  examined  as  a  witness  if  no  decree  be  sought  against 

him. 
Notice  of  the  execution  of  a  commission  to  lay  off  dower  under  a  decree  of  the 

court  need  not  be  given  to  the  tenant  who  is  a  party  to  the  suit. 
It  seems  that  purchase  for  a  valuable  consideration  without  notice  is  not  a  good 

defence  against  a  claim  of  dower  either  at  law  or  in  equity. . 
Where  such  a  defence  is  available  it  may  be  made  by  answer  as  well  as  by  plea  : 
But  the  answer  must  contain  all  the  requisites  of  a  plea. 

Appeal  from  the  decree  of  the  chancellor,  Newcastle. 
(Judge  Black  did  not  sit  having  been  of  counsel  below.) 
This  was  a  bill  for  dower  and  for  arrears  of  dower.  John  and  Bar- 
zillai  Newbold  were  seized  of  a  tract  of  land  in  Newcastle  county  as 
tenants  in  common,  in  equal  undivided  moieties.  Barzillai  New- 
bold  died  in  February,  1815,  leaving  to  survive  him  the  complain- 
ant below  Eupliemia  Newbold  his  widow  and  seven  children.  By 
his  last  will  and  testament  in  writing,  duly  executed,  he  devised  his 
part  of  the  said  tract  of  land  to  his  two  sons,  Daniel  and  Anthony 
Newbold,  in  equal  moieties  as  tenants  in  common  in  fee;  and  by  his 
said  will  he  made  sundry  bequests  to  his  wife  in  lieu  of  dower.  The 
widow  Euphemia  in  March,  1815,  renounced  her  interest  under  the 
will  and  elected  to  take  her  dower  out  of  the  lands.     Daniel  and 


886  RiDOEWi  Y  AND  Newbold  vs.  Newboi.d. 

Anthony  the  sons  made  partition  in  182ii,  by  deed,  to  which  their 
uncle  John  Newbold  was  also  a  party,  so  that  each  might  hold  his 
share  in  severalty.  Anthony  mortgaged  his  part  in  1825  to  Jacob 
Ridgeway,  one  of  the  respondents,  for  the  sum  of  $6000,  under 
which  mortgage  the  land  was  sold  in  1827  and  bought  by  the  said 
Ridgeway.  The  complainant  prayed  an  assignment  of  dower  out  of 
this  part  of  the  lands  formerly  of  her  husband,  and  for  an  account  of 
rents  since  the  death  of  Barzillai  Newbold. 

The  respondent,  Ridgeway,  contended  that  dower  could  not  be 
assigned  as  against  him  alone,  or  otherwise  than  out  of  all  the  undi- 
vided moiety  of  which  Barzillai  Newbold  died  seized.  He  insisted 
that  the  money  which  was  the  consideration  of  the  mortgage,  was 
loaned  by  him  to  Anthony  T.  Newbold,  without  any  notice  of  this 
claim  of  dower,  and  on  the  false  representation  that  there  was  no  in- 
cumbrance whatever.  That  Euphemia  Newbold  never  set  up  any 
claim  of  dower  until  after  his  purchase,  nor  does  she  now  claim 
dower  out  of  any  other  of  the  lands  of  her  husband  than  the  part  so 
purchased  by  the  respondent.  He  charged  a  combination  between 
Anthony  T.  Newbold  and  his  mother  Euphemia. 

Anthony  T.  Newbold  answered  separately,  admitting  all  the  facts 
of  the  bill,  and  that  the  complainant  had  frequently  demanded  dower 
of  him.  That  he  expressly  told  Ridgeway  when  he  executed  the 
mortgage,  that  this  land  was  subject  to  dower;  and  that  it  was  in 
arrear.  The  incumhrance  was  also  generally  known  and  spoken  of 
at  the  sale. 

Anthony  T.  Newbold  was  also  examined  as  a  witness  for  com- 
plainant, under  a  special  order  of  the  court,  "  saving  all  just  excep- 
tions." He  testified  more  particularly  to  the  facts  stated  in  his  an- 
swer; affirming  them.  Articles  were  exhibited  against  his  testimony. 
First.  Because  he  was  a  party  defendant  and  was  interested  in 
the  event  of  the  cause.  Second.  Because  his  testimony  went  to 
tjharge  the  purchaser  of  land  under  a  mortgage  from  him  with  the 
whole  of  the  arrears  of  dower,  and  to  discharge  himself.  Third. 
Because  his  examination  was  irregular  and  contrary  to  the  rules  of 
practice  in  chancery. 

On  the  28th  November,  1831,  the  chancellor  decreed  that  the  one 
third  part  of  the  land  mortgaged  to  Ridgeway,  and  afterwards  pur- 
chased by  him,  should  be  assigned  and  laid  oif  to  the  complainant  for 
her  dower;  and  he  issued  a  commission  for  this  purpose;  and  he 
further  decreed  that  an  account  of  the  rents  and  profits  should  be 
taken  by  Andrew  C.  Gray,  Esq.,  a  master  in  chancery,  appointed 
for  the  purpose,  from  the  25th  March,  1827,  and  that  he  should  re- 
port the  said  account  to  the  next  court  of  Chancery. 

An  appeal  from  this  decree  was  prayed  and  granted  on  behalf  of 
the  complainant,  who  objected  that  the  decree  confined  the  arrears 
of  dower  to  the  date  of  Ridgeway's  purchase  instead  of  going  back  to 
the  time  of  Barzillai  Newbold's  death. 

The  case  was  heard  in  the  Court  of  Errors  and  Appeals,  at  the 
June  term,  1832,  and  the  decree  of  the  chancellor  was  in  all  things 
affirmed  by  that  court:  and  the  commissioners  and  master  were  di- 
rected to  proceed,     (ante  55.J 

On  the  coming  in  of  the  master's  report,  exceptions  were  filed  to 
it  on  the  part  of  the  respondent  Ridgeway;  and,  after  argument,  the 


Ik 


ElDGEWAY  AND  XeWBOLD  VS.  NeWBOLD.  387 


chancellor  overruled  all  the  exceptions  and  confirmed  the  report. 
He  made  his  final  decree  on  the  23d  of  February,  A.  D.  1833,  di- 
recting Eidgeway  to  pay  to  the  complainant  the  sum  of  $538  52  1-3 
for  arrears  of  dower;  and  also  confirming  the  assignment  of  dower. 

From  this  decree  the  present  appeal  was  taken. 

The*  causes  of  appeal  specified  the  following  errors,  though  all  of 
them  were  not  insisted  on  in  the  argument.  First.  For  that  the  one 
third  part  of  the  land  purchased  by  Eidgeway  was  directed  to  be 
assigned  and  laid  off  to  Euphemia  Newbold,  for  her  dower  '*  whereas 
the  right  of  dower  of  the  said  Euphemia  Newbold,  if  any  right  of 
dower  existed,  was  in  the  undivided  moiety  of  the  tract  of  land  con- 
taining 800  acres,  held  by  the  said  Barzillai  Newbold  at  the  time  of 
his  decease  as  tenant  in  common  with  his  brother  John  Newbold." 
Second.  For  that  a  commission  was  issued  to  lay  off  the  dower  in 
the  lands  so  purchased  by  Eidgeway,  whereas  the  land  so  purchased 
is  only  a  part  of  the  land  of  which  Barzillai  Newbold  died  seized, 
and  the  said  Barzillai  was  only  a  tenant  in  common  thereof  with  his 
brother  John  ISTewbold.  Third.  Because  the  decree  should  have 
been  for  deft,  below.  Fourth.  Because  the  testimony  and  deposi- 
tion of  Anthony  T.  Xewbold  admitted  and  used  in  the  court  below 
were  inadmissible  and  ought  to  have  been  suppressed,  "  he  the  said 
Anthony  not  being  a  competent  witness,  and  was  interested  in  the 
matters  in  controversy  and  was  a  party  defendant."  Fifth.  Because 
Andrew  C.  Gray,  Esq.,  was  appointed  to  ta^e  an  account  of  the 
rents  and  profits,  &c.,  whereas  "  jiidicial  power  cannot  be  delegated 
but  by  express  law,''  and  that  important  rights  and  privileges  of  the 
deft,  were,  by  order  of  the  chancellor,  examined  and  adjudicated  out 
of  court  by  the  said  Andrew  C.  Gray.  Sixth.  Because  the  master 
did  not  allow  certain  expenditures  made  by  Eidgeway  on  said  lands. 
Seventh.  Because  the  decree  for  issuing  a  commission  to  lay  off  the 
dower  did  not  direct  notice  of  the  execution  of  said  commission  to 
be  given  to  the  deft.;  and  because  the  commissioners  proceeded  to 
execute  the  commission  in  the  absence  of  deft,  and  without  notice 
to  him. 

Wales,  for  appellant.  A  dowress  is  entitled  to  dower  at  common 
law  only,  in  such  estate  as  her  husband  held  and  died  seized  of. 
Dower  of  an  estate  in  common  must  be  laid  off  as  in  common,  i.  e. 
one  third  of  an  undivided  moiety;  and  the  widow  may  afterwards 
have  her  partition.  She  cannot  be  endowed  by  metes  and  bounds  in 
the  first  instance  for  the  dower  must  be  assigned  generally.  The 
principle  is  that  dower  cannot  be  assigned  at  law  or  in  equity  except 
in  a  certainty.  Co.  Litt.  32  h.  35  a.  37  h.  2  Bac.  Ahridg.  tit. 
Dower  B.  125.  And  it  was  so  decided  by  the  late  chancellor  Eidgely 
in  Nancy  Waples  vs.  John  Smith  Waples  and  Paul  Waples. 
Sussex,  July  T.  1820.  (a)  Second.  Eidgeway  is  a  purchaser  for  a 
valuable  consideration  without  notice  of  the  incumbrance.  Equity 
will  not  assist  a  dowress  against  such  a  purchaser.  Such  a  defence 
will  not  avail  at  law,  for  dower  there  is  a  legal  right  and  this  defence 
a  mere  equity;  but  in  this  court  the  parties  stand  on  equal  ground, 
and  it  will  not  enforce  a  mere  equitable  claim  against  an  equally 

(a)  No  record  of  this  decision  is  to  be  found  amongst  the  manuscript 
notes  of  the  late  Chancellor  Eidgely. 


388  RiDGEWAY  AND  NeWBOLD  VS.  NeWBOLD. 

equitable  defence.  Free,  in  Ch'y.  66;  Lady  Radnor  vs.  Rotheroe; 
3  Brown  Ch'y.  R.  265;  Hardw.  Rep.  88;  James  vs.  Blunt;  2 
Vezey,  Jr.  454;  Gerrard  vs.  Saunders;  per  Chancellor  Ridgely, 
in  Dick  vs.  Doughton — Newcastle,  1826.  (b)  Third.  The  com- 
mission directed  dower  to  be  assigned  in  a  part  only  of  the  land  of 

(b)  The  case  of  Martha  Dick,  a  lunatic,  by  James  Bradford  her  trustee 
against  William  Doughton  was  a  bill  for  dower  and  for  arrears  of  dower 
against  a  purchaser.  The  conveyances  were  traced  down  to  Doughton, 
but  in  no  one  of  them  was  there  any  consideration  mentioned.  The  an- 
swer, however,  stated  that  Doughton  "  gave  a  full  and  fair  and  just  price 
for  the  said  tract  of  land,  without  any  notice,  knowledge  ©r  belief  that 
there  existed  any  defect  in  the  title  of  the  same,  or  that  the  said  tract  of 
land  was  liable  to  any  claim  or  demand  of  dower  by  the  said  Martha  Dick 
or  of  any  other  person."  In  remarking  upon  the  manner  of  setting  up  this 
defence,  the  Chancellor  (Ridgely)  said  "  a  plea  of  purchase  for  valuable 
consideration  without  notice  must  aver  the  consideration  and  actual  pay- 
ment of  it,"  and  this  not  merely  by  way  of  recital,  but  it  should  be  averred 
that  the  sum  mentioned  as  the  consideration  in  the  deed  was  really  and 
bona  fide  paid.  "And  where  the  defence  is  made  by  answer  without  a  plea, 
it  is  necessary  that  there  should  be  the  same  precision,  and  that  all  the 
matters  making  the  defence  should  be  as  clearly  and  explicitly  stated  as 
in  a  plea."  "  However  as  the  answer  has  not  been  excepted  to,  it  will  be 
taken  as  sufficient."  Mitf.  216;  3  Atk.  304;  do.  814;  1  Harrison  224;  Oil- 
heri's  Ch'y  57,  8,  Mitf.  215, 16 ;  Sugden  on  Vendors  553,  558.  Two  other 
points  were  made  in  this  case  —  first,  whether  the  defendant  could  by  an 
answer  make  the  defence  of  being  a  purchaser  for  a  valuable  considera- 
tion without  notice ;  and  second,  whether  such  a  defence  could  be  made  by 
either  plea  or  answer  against  a  claim  of  dower.  The  chancellor  made  the 
following  remarks  on  these  questions: 

"  First.  I  think  a  deft,  may  avail  himself  of  this  defence  by  answer  as 
well  as  plea ;  and  the  following  authorities  support  this  opinion.  1  Harr. 
244;  Harris  vs.  Ingledon;  3  Wms.  91,  95.  2  Vez.  492;  1  Harr.  224.  And 
as  to  the  statute  limitations,  1  Harr.  222 ;  2  Wms.  145 ;  1  Harr.  224.  Lord 
Hardwick  says  in  Chapman  vs.  Turner,  1  Atk.  54,  the  defence  proper  for 
a  plea  must  be  such  as  reduces  the  cause  to  a  particular  point,  and  from 
thence  creates  a  bar  to  the  suit,  and  is  to  save  the  parties  the  expense  of 
an  examination ;  and  it  is  not  every  good  defence  in  equity  that  is  good 
in  a  plea,  for  where  the  defence  consists  of  a  variety  of  circumstances 
there  is  no  use  of  a  plea,  the  examination  must  still  be  at  large,  and  the 
effect  of  allowing  such  a  plea  will  be  that  the  court  will  give  their  judg- 
ment on  the  circumstances  of  the  case  before  they  are  made  out  by  the 
proof.  In  addition.  Lord  Redesdale's  treatise  on  pleadings,  246,  may  be 
consulted  on  this  subject.  The  defencie  in  this  case  might  possibly  hav« 
been  better  made  by  plea  and  by  answer  in  support  of  the  plea. 

The  second  might  have  been  much  the  most  important  point,  but  from 
the  failure  of  proof  in  the  deft,  it  is  not  of  the  first  consideration  in  the 
cause.  However,  I  shall  not  pass  it  by  without  notice.  In  Williams  vs. 
Lambe,  3  Bro.  C.  C.  264,  which  was  a  bill  for  dower  and  in  which  the 
deft,  plead  to  the  discovery  and  relief  that  he  was  a  purchaser  for  a  valu- 
able consideration  without  notice  of  the  vendor  being  married,  Lord 
Thurlow  said  the  only  question  was  whether  a  plea  of  purchase  without 
notice  would  lie  against  a  bill  to  set  out  dower:  that  he  thought  where  a 
party  is  pursuing  a  legal  title  as  dower  is  that  plea  does  not  apply  it  being 


EiDGEWAY  AND  Newbold  VS.  Newbold.  389 

which  Barzillai  Newbold  died  seized.  It  cannot  be,  on  principle, 
that  a  dowress  may  go  to  any  part  of  the  land  and  claim  her  dower 
out  of  that,  she  must  have  her  dower  out  of  the  whole,  and  in  such 
quality  of  estate  as  her  husband  held. 

Rogers,  for  respondent.  I  agree  that  where  dower  is  sought  out 
of  land  held  in  common,  the  assignment  must  be  in  common;  but 
after  partition  It  may  be  assigned  by  metes  and  bounds  out  of  the 
laTids  held  in  severalty.  The  land  is  no  longer  held  in  common. 
Barzillai  and  John  Newbold  were  tenants  in  common;  the  former 
devised  to  his  two  sons  in  common;  these,  together  with  John  the 
uncle,  made  partition  before  any  assignment  of  dower,  and  each  held 
his  part  in  severalty.  It  was  lawful  for  them  to  make  such  partition; 
they  had  the  right  to  destroy  the  tenancy  in  common;  the  dowress 
could  not  prevent  it.  Now  would  it  not  be  extraordinary  that 
she  should  be  compelled  to  treat  this  land  so  severed  as  if  it  were 
still  held  in  common?  and  if  she  must  do  so  would  it  not  defeat  the 
partition?  And  where  is  the  inconvenience  of  assigning  the  dower 
out  of  such  part?  Second.  Whether  on  the  answer  of  Jacob  Ridge- 
only  a  bar  to  an  equitable  not  to  a  legal  claim.  He  therefore  overruled 
the  plea.  Mr.  Parke  in  his  treatise  on  dower,  328,  says  the  case  of  Wil- 
liams vs.  Lambe  may  be  supported  on  its  particular  circumstances,  on  the 
ground  that  the  plea  covered  too  much,  being  to  the  relief  as  wdll  as  to 
the  discovery.  The  dowress  had  a  right  to  recover  against  the  purchaser 
at  law;  and,  if  it  be  established  that  a  court  of  equity  has  a  concurrent 
jurisdiction  to  assign  dower,  such  a  plea  to  the  relief  would  appear  to  be 
inexplicable  although  it  might  be  good  to  the  discovery,  since  the  relief 
prayed  is  not  the  assistance  of  the  court  to  enable  the  dowress  to  make 
good  her  title  at  law,  but  merely  to  give  her  the  effect  of  a  recovery  at  law. 
It  is  indeed  observable  that  the  observations  of  Lord  Thurlow  were  dis- 
tinctly addressed  to  the  plea  as  a  plea  to  the  relief;  and  his  omitting  to 
intimate  that  such  a  plea  might  be  good  as  to  the  discovery,  might  possi- 
bly be  accounted  for  by  the  consideration  that  in  a  case  so  circumstanced, 
a  plea  to  the  discovery  would  almost  unavoidably  be  overruled  by  the  an- 
swer. Now  in  the  case  of  Williams  vs.  Lamhe,  I  do  not  perceive  the 
ground  for  Mr.  Parke's  distinction;  for,  as  the  case  is  reported  by  Brown, 
although  Lord  Thurlow's  remarks  were  addressed  to  the  plea  yet  they  cer- 
tainly distinctly  state  that  the  plea  did  not  apply  as  a  bar  to  a  legal  claim, 
that  dower  was  a  legal  claim,  and  therefore  the  plea  was  overruled.  But 
suppose  Mr.  Parke's  distinction  to  be  correct,  this  answer  does  not  object 
to  making  the  discovery  and  it  does  state  the  several  deeds  of  conveyance 
and  makes  a  full  discovery  as  to  the  title;  and  then,  as  I  clearly  under- 
stand it,  it  opposes  the  purchase  for  a  full,  fair  and  just  price,  without 
any  notice,  knowledge  or  belief  that  there  existed  any  defect  in  the  title, 
or  that  the  said  tract  of  land  was  liable  to  any  claim  or  demand  of  dower 
by  the  said  Martha  Dick,  io  the  relief.  I  refer  to  the  Philadelphia  edition 
of  Sugden  on  Vendors  557,  and  the  cases  there  cited  to  show  the  doubts 
entertained  on  this  subject.  This  is  a  legal,  not  an  equitable,  title ;  and  I 
should  decree  in  favor  of  the  complainant  had  the  defendant  supported 
his  answer  by  proof;  unless  the  admission  of  the  sufficiency  of  the  an- 
swer, by  not  excepting  to  it,  might  have  interposed  a  difficulty." 

The  decree  in  the  case  was  for  the  assignment  of  dower,  and  for  an 
account  of  the  arrears  from  the  time  of  the  purchase  made  by  William 
Doughton. 


390  KiDGEWAY  AND  NeWBOLD  VS.  NeWBOLD. 

way  he  can  avail  himself  of  the  defence  of  purchase  for  a  valuable 
consideration  without  notice.  In  the  first  place  how  is  the  fact? 
Anthony  T.  Newbold,  one  of  the  defts.,  was  examined  under  the 
order  of  the  court.  Where  is  the  objection  to  his  testimony?  Not 
that  he  is  a  deft.  A  plff.  has  a  right  to  examine  a  deft,  as  a  wit- 
ness if  he  seek  no  decree  against  him;  and  here  Anthony  Newbold 
is  a  mere  formal  party.  2  Mad.  Ch.  415.  Is  he  interested?  How? 
The  claim  is  for  dower  out  of  lands  in  which  he  no  longer  has  any 
interest^  for  all  his  interest  has  been  assigned  to  Eidgeway.  He  is 
not  interested  as  to  the  arrears  of  dower,  for  this  court  has  already 
decided  that  the  complainant  could  only  recover  arrears  from  Eidge- 
way, since  the  date  of  his  title,  and  no  decree  has  been  made  or  was 
sought  against  Newbold.  Moreover  being  called  by  the  complainant 
he  is  swearing  against  his  interest;  and  he  has  also  been  released  by 
her.  If  then  Anthony  T.  Newbold  is  a  competent  witness,  this  de- 
fence is  at  an  end,  for  he  proves  that  he  gave  Eidgeway  notice  of  the 
claim  of  dower.  Again;  any  matter  traced  to  the  knowledge  of  the 
party  which  would  put  a  prudent  man  upon  an  inquiry  as  to  the  lien 
is  equivalent  to  notice.  This  is  settled.  Now  abundant  matter  of 
this  description  is  found  in  the  very  mortgage  from  Anthony  T. 
Newbold  to  Eidgeway.  The  mortgage  refers  to  the  will  of  Barzil- 
lai  Newbold  and  to  the  partition  deeds.  The  will  shows  the  fact  that 
he  left  a  widow,  and  on  the  record  of  the  will  is  endorsed  her  renun- 
ciation and  election  to  take  dower  at  law.  Eidgeway  therefore  had 
the  means  of  notice  within  his  power;  enough  to  put  him  on  his 
guard;  and  he  cannot  now  avail  himself  of  the  want  of  notice.  But 
the  defence  itself  cannot  be  sustained  on  the  authorities.  It  does  not 
apply  to  a  claim  of  this  character.  Nor  is  it  here  properly  set  up.  I 
grant  that  a  party  may  avail  himself  of  this  defence  as  well  by  an- 
swer as  by  plea ;  but  all  the  formalities  required  in  the  one  case  must 
be  observed  in  the  other.  Great  strictness  is  required  in  verifying 
the  plea.  The  seizen;  the  payment  of  consideration;  the  want  of 
notice  must  all  be  positively  stated  and  sworn  to.  There  is  no  evi- 
dence here  that  the  consideration  for  this  mortgage  was  in  fact  paid, 
except  what  is  furnished  by  the  mortgage  deed,  and  this  ought  to 
have  been  sworn  to  by  the  deft,  to  entitle  him  to  this  defence.  But 
I  resist  the  whole  defence  as  inapplicable  to  a  claim  of  dower.  Dower 
under  our  act  of  Assembly  is  a  legal  right  wherever  prosecuted. 
There  may  be  cases  of  a  mere  equitable  claim  of  dower,  which  would 
let  in  any  equitable  defence  but  dower  under  our  law,  whether  prose- 
cuted for  in  a  court  of  common  law  or  of  equity,  has  the  validity 
of  a  legal  claim  to  which  such  a  defence  as  this  cannot  apply.  And 
how  unjust  would  it  be  to  defeat  a  claim  of  dower  by  the  mortgage 
of  the  heir  to  a  person  who  might  not  have  actual  knowledge  of  the 
right  to  dower.  The  distinction  I  have  taken  was  recognized  in  the 
case  of  Dick  vs.  Doughton,  cited  by  Mr.  Wales.  Third.  The  de- 
cree is  not  defective  from  any  irregularity  in  the  commission  issued 
for  the  assignment  of  dower.  The  deft,  was  in  court;  in  the  prog- 
ress of  a  litigated  cause;  he  was  bound  therefore  to  take  notice  of 
the  decree  and  of  every  thing  resulting  from  it.  It  is  not  like  an 
ex  parte  proceeding  where  notice  might  be  required  from  the  only 
actor  in  court.    In  the  common  cases  of  partition  or  assignment  un- 


RiDGEWAY  AND  NeWBOLD  VS.  NeWBOLD.  391 

der  our  acts  of  assembly  there  is  no  provision  for  notice,  because  the 
party  to  be  alTected  by  the  partition  is  in  the  possession  of  the  land 
and  must  take  notice.     The  same  principle  applies  here. 

Wales,  in  reply.  Anthony  T.  Newbold's  deposition  is  not  evi- 
dence. He  was  a  party  to  the  suit,  made  so  by  the  complainant  her- 
self, liable  for  costs,  liable  for  arrears  of  dower,  could  have  been 
decreed  to  pay  his  part  of  the  arrears  in  this  very  cause.  He  is 
therefore  interested.  Is  he  rendered  competent  by  the  release? 
This  is  not  a  part  of  the  record,  not  in  the  list  of  exhibits,  and  it 
saves  her  claims  for  dower.  Then  how  stands  the  case  on  the  main 
ground  of  purchase  for  valuable  consideration  without  notice?  Is  the 
defence  properly  set  up.  The  decision  in  Dick  and  Doughten  only 
establishes  that  the  consideration  must  appear  in  the  answer  or  in  the 
proof.  And  it  was  also  decided  in  that  case  that  if  the  answer  was 
defective  on  this  point  tlie  only  mode  of  objecting  to  it  was  by  ex- 
ception. The  answer  is  to  be  deemed  suflicient  if  not  excepted  to. 
But  here  the  consideration  does  appear,  not  only  in  the  answer  but  in 
the  bill  itself.  It  states  that  the  mortgage  was  given  "  to  secure  the 
payment  of  six  thousand  dollars,  with  lawful  interest,"  &e.  The 
defence  is  therefore  well  set  up.  Is  it  available?  I  know  of  no  such 
distinction  as  Mr.  Rogers  makes  between  legal  and  equitable  dower, 
unless  it  is  so  designated  from  the  court  in  which  it  is  sought.  All 
dower  is  a  legal  right,  but  when  it  is  necessary  to  seek  the  aid  of  a 
court  of  equity  to  enforce  it,  that  court  will  take  care  of  the  equities 
of  other  parties.  And  this  is  no  uncommon  thing  in  the  practice  of 
that  court.  When  called  on  to  enforce  legal  rights,  it  always  applies 
to  them  its  own  principles.  Is  the  dower  well  assigned?  How  could 
a  partition  among  the  tenants  in  common  affect  either  the  widow's 
right  to  dower  of  vary  the  manner  of  her  enforcing  it?  She  was  not 
a  party  to  the  partition,  and  it  is  against  all  principle  that  her  rights 
should  be  affected  by  the  acts  of  others.  And  is  there  not  good  rea- 
son for  compelling  the  widow  to  seek  her  dower  out  of  the  whole  es- 
tate in  the  condition  in  which  it  was  left  by  her  husband?  The  heirs 
at  law,  or  devisees,  should  all  be  parties  to  the  proceeding,  for  some 
of  them  might  show  a  satisfaction  or  a  release  which  would  enure  to 
the  whole. 

The  court  affirmed  the  decree  without  delivering  an  opinion  at 
length ;  but  it  was  understood  that  they  recognized  these  positions : 

First.  In  equity  a  woman  may  have  dower  assigned  as  against  one 
tenant  in  common  if  there  has  been  a  severance.  Tenants  in  com- 
mon have  the  right  to  make  partition,  which  the  widow  could  prevent, 
and  must  prevent,  if  she  may  not  seek  her  dower  against  each  after  a 
severance. 

Second.  The  deposition  of  Anthony  T.  Newbold  was  admissible, 
and  his  examination  as  a  witness,  notwithstanding  he  was  a  party  on 
the  record,  was  regular. 

Third.  The  fact  of  notice  was  proved,  and  therefore  the  principal 
point  was  not  necessarily  decided,  but  the  court  strongly  inclined  — 

Fourth.  That  purchase  for  valuable  consideration  without  notice  is 
not  a  good  defence  against  a  claim  of  dower  which  is  a  legal  and  not 
an  equitable  title. 

Fifth.  The  execution  of  the  commission  to  lay  off  the  dower  was 
not  irregular.  Xotice  to  Ridgeway  was  not  necessary,  nor  is  it  the 
practice.     He  was  a  party  to  the  proceeding  in  court,  and  bound  to 


392  Waples'  adm'x.  vs.  Waples  et  al. 

take  notice  of  its  decrees.     He  was  also  in  possession  of  the  land  out 
of  which  the  dower  was  assigned. 

Decree  affirmed. 

Wales,  for  appellant. 

Rogers,  for  respondent. 

ANN  WAPLES,  administratrix  of  WOOLSEY  WAPLES,  deceased, 
deft,  below  appellant  vs.  WILLIAM  D.  WAPLES,  GEORGE 
HICKMAN  and  LEWIS  WEST,  complainants  below,  respondents. 

Chancery  has  jurisdiction  to  inquire  into  awards  though  made  on  a  reference 
in  a  court  of  law,  on  the  ground  of  fraud  on  the  referees  discovered  after 
judgment  on  the  award. 

Judgments  on  awards  are  as  obligatory  as  judgments  after  verdict. 

Where  two  courts  have  concurrent  jurisdiction  and  one  of  them  is  in  posses- 
sion of  the  cause,  it  ousts  the  other. 

Whether  interest  on  arrears  of  an  annuity  is  not  allowable  in  certain  cases. 
Queref 

Appeal  from  the  decree  of  the  chancellor.     Sussex. 

Judge  Robinson  did  not  sit,  having  been  of  counsel  below. 

This  was  a  bill  to  set  aside  an  award  on  the  ground  of  fraud  prac- 
tised on  the  arbitrators.  The  chancellor  (Johns,  jr.)  decreed,  on 
the  18th  of  March,  1833,  "  that  the  award  made  in  this  case  and  the 
judgment  rendered  thereon  were  procured  by  the  fraud  of  the  said 
Woolsey  Waples,  the  defendant,"  and  that  "the  aforesaid  award  and 
judgment  so  fraudulently  obtained  be  and  the  same  hereby  are  de- 
clared to  be  null  and  void."  And  he  also  decreed  an  account.  From 
this  interlocutory  decree  the  defts.  appealed. 

The  case  was  this:  The  deft.,  Woolsey  Waples,  having  purchased 
of  a  certain  Samuel  White  a  farm  in  which  he,  together  with  his  bro- 
thers, Philip  and  James  White,  were  equally  interested,  executed  to 
the  said  Samuel  White  three  several  bonds  with  warrant  of  attorney 
to  confess  judgment  thereon,  upon  which  judgments  were  severally 
confessed  on  the  22d  September,  1812,  each  for  the  real  debt  of 
$901  53,  with  interest  from  the  21st  July,  1811.  These  judgments 
all  stood  in  the  name  of  Samuel  White,  but  one  of  them  was  indorsed 
for  the  use  of  Philip  White,  and  another  for  the  use  of  James  White, 
both  of  whom  were  infants  under  the  age  of  twenty-one  years,  and 
for  whom  Samuel  White  acted,  though  he  never  was  appointed,  as 
guardian.  Woolsey  Waples  made  several  payments  to  Samuel  White 
on  account  of  these  judgments,  and  took  receipts  therefor,  without 
designating  to  which  judgment  they  were  to  be  applied;  one  of 
$162  27,  dated  first  July,  1813;  one  of  $50,  11th  July  1815;  one  of 
$126  22,  23d  August,  1815,  and  one  of  $196  85,  dated  30th  Au- 
gust, 1815.  On  the  30th  October,  1815,  Samuel  White,  for  a  full 
and  valuable  consideration,  assigned  his  judgment  against  Woolsey 
Waples  to  William  D.  Waples,  one  of  the  complainants,  representing 
at  the  time  that  nothing  had  been  paid  upon  it  by  the  said  Woolsey. 
Between  that  time  and  the  21st  of  August,  1819,  Woolsey  Waples 
made  six  payments  on  account  of  said  judgment  to  William  D.  Wa- 
ples, the  assignee,  amounting  in  the  whole  to  $1019  10,  and  leaving 
a  balance  unpaid  of  about  $292:  on  the  last  mentioned  day  William 
I).  Waples,  assigned  the  balance  of  said  judgment  for  a  valuable  con- 
sideration, to  Hickman  and  West.  Philip  White  having  come  of 
age,  to  wit:  on  the  15th  September,  1816,  called  on  Woolsey  Wa- 


II 


Waples'  adm'x.  vs.  Waples  liT  AL.  393 


pies,  for  a  settlement  cf  his  judgment;  and  on  this  settlement  Wa- 
ples produced  all  the  receipts  aforesaid,  for  payments  made  to  Samuel 
White,  which  Philip,  ratifying  the  acts  of  his  acting  guardian,  al- 
lowed as  against  his  own  Judgment.  Waples  ma<le  a  further  pay- 
ment on  that  day  to  Philip  White,  and  took  a  general  receipt  for 
$851  85,  including  all  these  previous  receipts;  but  he  did  not 
give  up  those  receipts.  The  balance  still  due  on  Philip  W^hite's 
judgment  was  ascertained  on  that  day  to  be  $32-1  85.  Both  Philip 
and  Samuel  White  shortly  after  left  the  state  and  have  never  return- 
ed. Hickman  and  West  sued  out  a  scire  facias  on  the  judgment  as- 
signed to  them  as  aforesaid,  returnable  to  the  November  term,  1820, 
which  was  afterwards  referred  by  the  consent  of  parties  to  the  pro- 
thonotary  and  two  other  persons  named  by  them  "to  ascertain  whe- 
ther any,  and  if  any,  what  sum  is  due  plaintiff,  and  judgment  to  be 
entered  according  to  said  report."  On  this  reference  the  deft. 
Woolsey  Waples  produced  and  claimed  as  credits  to  this  judgment 
the  receipts  afsd.  of  Samuel  W^hite  for  $162  27,  $50  00,  $12G  22, 
and  $196  85,  which  were  allowed  by  the  referees;  and  they  reported 
that  there  was  nothing  due  on  said  Judgment.  Judgment  nisi  was 
rendered  on  this  report  at  the  May  term,  1823.  Whereupon,  Hick- 
man and  West  re-assigned  their  judgment  to  William  D.  Waples. 
Proceedings  were  afterwards  instituted  on  the  third  judgment  of 
Samuel  White,  being  the  one  marked  for  the  use  of  James  W^hite 
against  W'oolsey  Waples;  and  he,  havnig  died,  his  administratrix 
took  steps  to  ascertain  what  had  been  paid  on  account  of  that  Judg- 
ment. The  matter  was  referred  to  arbitrators  and  at  the  hearing  all 
the  receipts  were  produced;  when  the  settlement  receipt  of  15th 
September,  1816,  for  $851  85  being  recognized  as  in  the  handwri- 
ting of  Jacob  Prettyman,  who  was  present  at  the  settlement,  and 
made  the  calculations  it  led  to  an  explanation  of  the  whole  transac- 
tion. It  then  appeared  that  the  receipts  afsd.  allowed  by  the  refe- 
rees in  the  case  of  Hickman  and  West,  were  applicable  to  Philip 
White's  Judgment  and  that  Woolsey  Waples  had  previously  obtained 
credit  for  them  on  that  Judgment.  Neither  William  D.  Waples  nor 
Hickman  and  West  knew  of  these  circumstances  until  after  the  last 
reference  in  the  year  1829. 

Layton  for  the  appellant  contended  that  the  court  of  chancery  had 
not  jurisdiction  to  inquire  into  this  award.  Another  court  having 
full  jurisdiction  was  in  possession  of  the  cause;  it  had  been  submit- 
ted by  a  rule  of  reference  under  the  sanction  of  that  court  to  referees 
ohosen  by  the  parties,  and  a  report  had  been  made  and  judgment 
rendered  on  their  award.  The  court  of  chancery  has  no  power  to 
i-eview  this  decision.  He  cited  in  support  of  this  position,  1  Mad. 
Ch'y  295,  298;  2  do.  713,  14.  Also  the  case  of  Pratt  and  Kinsey 
ys.  Bradun  and  Eice  decided  in  the  late  High  Court  of  Errors  and 
Appeals  of  this  state  in  1811 ;  and  the  case  of  Beeson's  adm'rs  vs. 
Beeson's  ex'r.  in  the  same  court,  at  the  June  term,  1831.     (a) 

(a)  Joseph  Beeson  and  Thomas  Beeson,  administrators  of  Thomas  Bee- 
son,  deceased,  defendants  below,  appellants,  vs.  John  Elliott,  execu- 
tor of  Bebecca  Beeson,  deceased,  plaintiff  below,  respondent. 

High  Court  of  Errors  and  Appeals,  June  term,  1831. 

Appeal  from  the  decree  of  the  chancellor. 

Present,  Harrington,  chief  justice,  Rowland,  Davis  and  Dingle,  jus- 


394  Waples'  adm'x.  vs.  Waples  et  al. 

Courts  favor  awards.  They  tend  to  the  speedy  and  amicable  set- 
tlement of  disputes.     The  causes  for  setting  them  aside  must  be  for 

tices  of  the  Supreme  Court,  Clayton,  Chief  Justice,  and  Stout,  justice 
Common  Pleas,  (Cooper,  Justice,  absent.) 

This  cause  stood  upon  a  case  stated  in  the  nature  of  an  injunction  bill. 
It  was  agreed  upon  in  chancery  as  a  substitute  for  a  bill  and  answer. 

"  Thomas  Beeson,  senior,  by  will,  dated  in  17^7,  devised  his  land  &c.  to 
Jonathan  and  Thomas  Beeson,  his  sons,  and  bequeathed  to  his  wife,  Re- 
becca Beeson,  an  annuity  of  forty  pounds  per  annum,  payable  quarterly, 
in  bar  of  dower,  and  charsed  it  upon  the  real  estate  so  devised  to  his  sons, 
and  also  upon  his  personal  estate.  He  also  gave  his  wife  the  use  of  two 
rooms  in  his  house,  with  certain  other  privileges.  He  died  22d  March, 
1790.  The  aimuity,  &c.  were  accepted  by  the  widow  in  bar  of  dower.  In 
1790  she  removed  from  the  house  and  resided  with  her  two  sons  in  the 
country  until  1792,  when  she  went  to  live  with  her  son-in-law,  Elliott,  the 
defendant,  with  whom  she  lived  till  her  death.  On  the  death  of  Thomas 
Beeson,  sen.  the  house,  &c.  in  which  these  privileges  were  granted  came 
into  the  possession  of  Jonathan  and  Thomas  Beeson,  the  sons,  and  re- 
mained in  tlieir  possession,  without  any  agreement  with  their  mother 
about  compensation  for  her  relinquishing  the  use  of  them,  until  March, 
1799.  At  that  time  Jonathan  and  Thomas  being  about  to  sell  the  house, 
each  executed  to  the  widow  a  bond  for  the  payment  of  twenty  dollars,  an- 
nually, for  her  privileges  therein.  In  1814,  Rebecca  and  Thomas  Beeson 
having  differed  about  the  arrears  of  her  annuity  of  forty  pounds,  and  the 
arrears  of  the  said  bond  annuity  of  twenty  dollars,  entered  into  an  amica- 
ble action  in  the  court  of  common  pleas  for  Newcastle  county,  referring 
all  matters  in  variance  between  them  to  three  arbitrators,  who  unani- 
mously awai-ded  in  favor  of  Rebecca  Beeson  the  sum  of  $993  23.  and 
judgment  was  rendered  on  their  report.  The  arbitrators  allowed  interest 
on  the  annuity  of  $40,  and  also  allowed  a  compensation  for  the  widow's 
privileges  in  the  house  from  1793  to  1799,  during  which  time  they  were 
relinquished  for  the  benefit  of  the  heirs.  Rebecca  Beeson  died  in  1821, 
made  a  will,  and  the  deft.,  Elliott,  is  her  executor.  Thomas  Beeson,  jr. 
died  in  1825.    Complainants  are  his  administrators. 

Upon  hearing,  the  chancellor  dismissed  the  case  stated  in  the  nature 
of  a  bill,  and  ordered  the  costs  to  be  paid  equally  by  the  parties.  Where- 
upon an  appeal  was  prayed  and  granted. 

Mr.  Rogers,  for  api)ellants.  The  use  of  the  rooms  was  a  personal  privi- 
lege to  Rebecca  Beeson,  which  she  might  avail  herself  of  or  not  at  her  plea- 
sure. The  non-user  gave  her  no  claim  upon  the  heirs  unless  there  was  a 
contract  to  that  effect.  The  arbitrators,  therefore,  committed  a  mistake  in 
law  by  allowing  her  a  compensation  for  these  rooms  previously  to  1799. 
Second.  The  arbitrators  made  another  mistake  in  law,  by  allowing  interest 
on  the  annuity  of  forty  pounds.  Annuities  do  not  carry  interest.  That 
point  is  now  well  settled  in  England.  3  Brown,  ch.  489, 495-6 ;  1  Sch.  &  Lef. 
301 ;  4  Brown,  ch.  416.  If  this  be  the  law,  the  question  arises,  can  the 
court  of  chancery  give  relief  against  this  mistake  ?  We  don't  contend  that 
a  court  of  chancery  will  in  all  cases  inquire  into  awards,  but  if  there  be  a 
mistake  in  law  it  will  interfere.  Chancery  has  a  general  jurisdiction  over 
awards,  and  the  fact  that  a  party  may  object  to  the  award  in  the  court  be- 
low does  not  oust  chancery  of  its  jurisdiction.  Jurisdiction  of  chancery  not 
ousted  by  arbitration  under  statute  9  and  10,  William  IH.  2  Vezey,  jr.  451. 
The  statute  of  William  is  equally  full  with  our  act  of  assembly.  The  gen- 
eral jurisdiction  of  the  court  being  established,  was  this  a  proper  case  for 


Waples'  adm'x.  vs.  Waples  et  al.  395 

matter  apparent  on  the  face  of  the  award,  or  improper  conduct  on 
the  part  of  the  arbitrators.     The  court  will  not  strain  an  inference  of 

its  exercise  ?  The  grrounds  for  impeaching  awards  are — corruption,  misbe- 
havior, excess  of  power,  and  a  mistake  in  fact  admitted  by  the  arbitrator. 
Awards  contrary  to  law  may  be  impeached ;  for  that  is  excess  of  power. 
An  award  will  be  set  aside  for  a  mistake  in  law.  2  Vezey,  jr.  15 ;  Bun- 
lury,  265;  3  East.  18;  9  Vezey,  jr.  364;  13  East.  357.  There  is  a  distinc- 
tion between  the  reference  of  a  distinct  question  of  law  and  the  reference 
of  all  matters  to  be  decided  according  to  law.  In  the  latter  case  a  mis- 
take may  be  corrected,  though  not  in  the  first.  The  chancellor  therefore 
erred  in  dismissing  the  bill  for  want  of  jurisdiction. 

Mr.  Archibald  Hamilton,  for  respondents.  The  relinquishment  of  the 
use  of  the  rooms  was  for  the  benefit  of  Jonathan  and  Thomas  Beeson, 
and  they  set  their  own  estimate  upon  this  benefit  by  each  giving  the 
widow  a  bond  for  twenty  dollars  per  year.  The  arbitrators  might  well 
presume  a  contract  before  this  period,  and  it  was  just  that  they  should  al- 
low a  comi)ensation.  Second.  It  is  not  settled  that  interest  shall  not  in 
any  case  be  allowed  on  an  annuity;  on  the  contrary,  where  the  annuity  is 
for  maintenance,  in  bar  of  dower,  &c.  it  has  frequently  been  allowed. 
And  it  is  equitable  that  it  should  be  allowed.  It  appears,  then,  that  the 
referees  have  made  no  mistake;  they  have  allowed  interest  in  a  case 
where  by  law  it  was  allowable.  But  I  take  the  rule  to  be,  that  the  court 
will  not  set  aside  an  award  for  a  mistake  of  law  on  a  doubtful  point: 
only  upon  a  plain  and  palpable  mistake  of  the  law.  2  Atlc.  211;  3  Ath. 
.;79 ;  Tail,  cases,  2 ;  1  P.  Wms.  643 ;  2  P.  Wms.  163 ;  1  Yez.  jr.  452 ;  Stid- 
kam's  adm'x.  vs.  Shields,  Chy.  N.  C.  C;  3  Ath.  494;  1  Vez.  jr.  370;  2 
Jo.  16;  6  Taunt.  378;  2  Barn,  and  Aid.  291. 

There  being  no  ground  for  setting  aside  this  award,  admitting  chancery 
liad  jurisdiction,  it  is  unnecessary  to  go  into  a  particular  examination  of 
the  jurisdiction  of  this  court  over  awards.  In  many  matters  it  is  concurrent 
with  the  common  law  jurisdiction.  But  where  two  courts  have  concurrent 
jurisdiction  of  a  cause,  the  court  which  is  first  possessed  of  the  cause  ousts 
the  other's  jurisdiction.  Upon  this  principle  the  decree  of  the  chancellor 
was  correct.  3  Burr  1258;  9  Vezey,  jr.  67;  2  Atlc.  162;  3  do.  529;  2  Vez. 
jr.  21;  1  Ath.  63.  In  the  case  of  Crane's  administrator  vs.  Lowher,  in 
chancery.  New  Castle  coimty,  there  was  a  decree  setting  aside  an  award, 
;ind,  upon  appeal,  this  court  reversed  the  decree,  upon  the  ground  that  the 
court  of  common  law  to  which  the  award  was  returned  had  full  jurisdic- 
tion, and  being  possessed  of  the  cause,  ousted  the  jurisdiction  of  chan- 
(3ery.  The  parties  here  are  also  barred  by  an  acquiescence  in  the  award 
and  judgment  for  eleven  years.    It  is  now  too  late  to  enquire  into  it. 

Mr.  .James  Booth,  in  continuation  for  respondents.  This  is  the  case  of  a 
father  devising  a  considerable  property  to  his  two  sons,  and  directing  them 
to  pay  an  annuity  of  forty  pounds  to  their  mother,  in  lieu  of  dower,  and  also 
giving  her  the  use  of  two  rooms  in  his  house,  with  certain  other  privileges. 
The  annuity  was  left  unpaid.  The  parties  referred  all  matters  in  dispute  in 
-•elation  to  the  widow's  claim  under  the  will,  to  three  intelligent  referees, 
who  awarded  for  the  annuity  and  interest,  and  a  comnensation  for  the  use 
of  the  rooms,  which  was  relinquished  to  the  sons.  The  house  was  sold  by 
them.  It  is  a  strong  case  therefore  against  the  application  to  set  aside  the 
award,  after  the  lapse  of  eleven  years,  not  on  the  application  of  the  sons 
and  devisees  who  have  acquiesced  in  it,  but  of  their  children.  What  are 
the  grounds  of  this  application  ?  First.  The  allowance  of  compensation  for 
the  use  of  the  rooms.    Did  not  Thomas  Beeson  himself  acknowledge  the  jus- 


396  Waples'  adm'x.  vs.  Waples  et  al. 

fraud;  it  must  be  apparent  and  flagrant.  The  complainants  have  suc- 
ceeded in  mystifying  this  case  and  throwing  a  suspicion  over  it  by 

tice  of  this  claim  and  fix  the  amount  of  it  by  giving  his  bond  to  his  mother 
for  the  payment  of  twenty  dollars  per  annum?  Jonathan  and  Thomas 
Beeson  had  the  use  of  these  rooms  and  the  benefit  of  the  relinquishment 
by  their  mother.  Second.  Mistake  in  law  in  the  award  by  allowing  inter- 
est on  the  annuity  from  1791.  I  have  heard  no  reason  why  interest  should 
not  be  allowed  on  an  annuity,  but  we  are  only  cited  to  cases.  Those  from 
8  Brown  495,  and  1  Schoales  and  Lefroy  301,  are  the  principal  ones.  These 
eases  only  decide  that  interest  is  not  allowable  except  in  very  particular 
circumstances  which  is  all  we  (rontend  for.  The  principal  running  through 
all  our  cases  is,  that  where  the  annuity  is  the  bread  of  the  widow,  interest 
is  allowable.  There  is  no  fixed  and  unyielding  rule  on  the  subject  which 
may  not  be  controlled  by  peculiar  circumstances.  But  suppose  this  a 
doubtful  matter,  and  it  be  doubtful  whether  the  arbitrators  did  right,  we 
contend  that  chancery  would  not  interfere  to  set  aside  their  award.  We 
don't  contend  that  there  is  no-  case  in  which  a  Court  of  Chancery  would  set 
aside  an  award ;  we  admit  its  general  jurisdiction  over  awards ;  but  the  ju- 
risdiction of  our  Courts  of  Chancery  is  essentially  different  from  that  of 
the  English  courts.  In  England  there  are  two  kinds  of  awards :  upon  ref- 
erence out  of  court  by  parol  or  by  bond  where  no  suit  is  pending;  and 
upon  the  reference  of  a  cause  in  court.  The  statute  of  William,  places 
them  on  the  same  footing.  I  incline  to  the  opinion  that  the  statute  of 
Wm.  is  not  in  force  here.  Our  awards  are  of  the  first  kind ;  regulated  by 
our  act  of  assembly.  I  contend  that  judgments  on  awards  under  that  act 
are  equal  to  judgments  rendered  on  the  verdict  of  a  jury.  Our  law  is  the 
same  with  the  Pennsylvania  statute,  which,  under  their  construction  of  it, 
gives  great  force  to  awards.  The  principle  then  is  that  Chancery  will  not 
exercise  its  extraordinary  powers  to  set  aside  a  judgment  upon  an  award, 
except  upon  a  case  disclosing  such  peculiar  circumstances  as  would  au- 
thorize its  interference  in  the  case  of  a  judgment  rendered  on  the  verdict 
of  a  jury.  Our  law  directs  that  a  party  shall  be  remitted  to  common  law 
where  there  is  a  sufficient  remedy  there.  The  complainants  here  had  a 
full  remedy  at  law  to  set  aside  this  award  if  it  were  wrong.  Corruption 
of  arbitrators,  fraud  or  collusion  of  parties,  admitted  mistake  of.  facts  &c. 
are  proper  grounds  for  setting  aside  awards.  Digest  103;  1  Sch.  &  Lef. 
206;  Ky'd.  Awd.  327;  1  Bac.  Ah.  K.  239,  Wils.  Ed.  The  result  of  all  the 
cases  on  the  subject  of  interest  is,  that  generally  it  will  not  be  allowed 
for  arrears  of  an  annuity,  but  it  is  discretionary  and  under  particular  cir- 
cumstances especially  where  it  is  for  the  maintenance  of  a  widow  or  child, 
in  bar  of  dower,  where  it  is  charged  on  real  estate  or  secured  by  bond  on 
the  personal,  the  court  has  frequently  allowed  it. 

Mr.  James  A.  Bayard,  for  appellants,  in  reply: 

There  have  been  conflicting  opinions  in  our  courts  relative  to  awards.  In 
Pratt  and  Kinsey  vs.  Bradun  and  Rice,  this  court,  in  1811,  affirmed  the 
chancellor's  jurisdiction,  though  there  have  been  decisions  looking  the  other 
way.  We  may  at  least  say  that  the  question  of  jurisdiction  is  open.  First. 
The  court  of  chanceryhas  jurisdiction  in  cases  of  awards  either  in  pais  or 
upon  the  reference  of  a  cause  in  court.  Its  common  law  jurisdiction  before 
the  statute  of  William  is  unquestionable.  This  jurisdiction  can't  be  taken 
away  by  inference — ^it-must  be  expressly  denied.  Is  there  any  thing  in  our 
statute  which  does  take  it  away.  The  ix)wer  given  to  the  courts  of  law  is 
the  extension  of  a  beneficial  principle,  gives  a  concurrent  remedy,  but  it 
does  not  oust  the  jurisdiction  of  chancery.    The  stat.  Wm.  did  not  oust 


I 


Waples'  adm'x,  vs.  Waples  et  al.  397 

a  confused  introduction  of  the  three  judgments  and  the  numerous  re- 
ceipts applying  to  them;  yet  it  is  by  no  means  certain  that  there  has 

chancery  jurisdiction;  Bunb.  R.  265;  does  our  act  of  Assembly?  The 
courts,  therefore,  of  common  law  and  of  chancery  have  both  jurisdiction 
over  awards ;  they  proceed  in  different  modes,  but  they  inquire  into  them 
upon  the  same  grounds.  The  doctrine  of  concurrent  jurisdiction  and 
first  possession  of  the  cause  does  not  apply  because  the  Court  of  Common 
Pleas  never  had  possession  of  this  cause.  There  was  no  application  to 
that  court  to  set  aside  the  award.  There  is  a  distinction  as  to  jurisdic- 
tion where  the  objection  to  the  award  appears  on  the  face  of  it  and  where 
not,  but  this  distinction  has  not  been  taken  in  our  state.  Our  courts  will 
all  inquire  dehors  the  award.  What  are  the  grounds,  then,  of  impeaching 
awards?  Four, — corruption;  misbehavior;  excess  of  power,  which  a  mis- 
take in  law  is;  and  a  mistake  in  fact  admitted  by  the  arbitrator.  The 
only  ground  here  alledged  is  the  excess  of  power,  to  wit :  a  decision  against 
law.  On  a  general  reference  the  court  will  correct  a  mistake  in  law ;  but 
not  on  the  reference  of  a  particular  question  of  law,  or  where  the  general 
reference  is  to  lawyers,  in  which  cases  it  will  be  inferred  that  the  parties 
specially  constituted  the  referees  the  judges  of  the  law.  2  Vez.  jr.  15 ;  9  ditto 
364;  1  ditto  370.  This  is  the  principle,  that  on  a  general  reference  to  per- 
sons not  lawyers  the  court  will  correct  their  mistakes  as  to  law,  and 
whether  the  mistake  is  upon  a  clear  or  a  doubtful,  (that  is,  difficult)  point 
of  law  the  court  will  equally  correct  it.  There  may  be  a  distinction  between 
an  evident  or  doubtful  mistake;  and  a  mistake  upon  a  clear  or  difficult 
point ;  in  the  latter  it  can  never  be  doubtful  whether  the  arbitrator  made  a 
mistalte  if  the  point  of  law  decided  is  known.  The  decision  of  the  court 
removes  all  doubt  as  to  the  law.  The  referees  decided  against  law  on  two 
points ;  first,  in  relation  to  the  use  of  the  rooms ;  and  secondly,  by  allowing 
interest  on  the  arrears  of  annuity.  Examines  the  cases.  The  cases  in  P, 
Wms.  are  against  us,  but  they  are  overruled  by  the  great  case  of  Tew  vs. 
Lord  Winterton  where  all  the  cases  are  reviewed.  3  Brown  Rep.  389;  1 
Vez.  jr.  451,  S  C;  4:  Brown  316,  321 ;  1  Sch.  &  Lef.  301.  The  strongest 
case  on  the  other  side  is  the  one  cited  from  Barn,  and  Aid.,  (2  Barn.  & 
Aid.  691.)  which  is  a  late  case,  but  it  refers  to  a  matter  of  practice  only, 
and  not  a  general  rule  of  law.  As  to  the  delay,  I  understand  the  doctrine 
of  acquiescence  to  be  in  equity  the  same  with  limitation  at  law,  twenty 
years.  Third.  We  contend  that  our  act  of  Assembly  opens  the  door  to  in- 
quiring into  awards  wider  than  it  was  at  common  law,  or  under  the  stat- 
ute of  William.  It  places  awards  on  the  ground  of  verdicts,  and  renders 
them  liable  to  be  set  aside  upon  the  same  ground  that  would  authorize 
the  setting  aside  a  verdict  or  granting  a  new  trial. 

His  honor  the  Chancellor  (Johns)  now  assigned  his  reasons  for  his  de- 
cision in  the  court  below: 

He  remarked  that  he  considered  the  question  of  allowing  interest  on  an 
annuity  not  to  be  settled  in  Delaware,  if  it  be  in  England.  The  cases 
there  are  conflicting.  His  opinion  was  that  the  allowance  of  interest  is 
discretionary,  to  be  decided  on  the  particular  circumstances  of  each  case. 
This  annuity  was  for  maintenance ;  and  he  thought  the  arbitrators  exer- 
cised a  good  discretion  in  allowing  interest.  In  their  calculation  of  inter- 
est it  did  appear  to  him  that  they  had  made  a  mistake  against  Rebecca 
Beeson.  Admitting  the  general  jurisdiction  of  chancery  over  awards,  the 
chancellor  thought  that  this  was  not  a  proper  case  for  his  interference. 
But  he  thought  the  court  of  chancery  had  no  jurisdiction  over  this  cause; 
because  Thomas  Beeson  had  a  sufficient  remedy  at  law,  and  the  Court  of 


31)8  Waples'  adm'x.  vs.  Waples  et  al. 

been  either  fraud  or  mistake  in  the  case.  At  this  distance  of  time; 
after  the  matter  has  long  since  been  settled  by  the  final  action  of  a 

Common  Pleas  having  possession  of  the  cause  ousted  the  jurisdiction  of 
chancery.  This  point  was  flatly  decided  in  Crane's  ex'r.  vs.  Lowber,  in 
this  court.  He  considered  himself  bound  by  this  decision,  whatever  might 
be  the  English  law.  The  chancellor  remarked  that  the  law  of  awards  had 
been  much  changed  since  the  fourth  of  July,  1776.  Our  own  independent 
laws,  and  indeed  the  condition  of  independence  itself  had  necessarily  pro- 
duced many  changes.  He  was  not  certain  whether  the  statute  of  William 
had  been  adopted  here,  but  thought  that  the  statute  18  Geo.  2,  was  in- 
tended as  a  substitute  for  it.  He  cited  a  great  number  of  cases  on  awards, 
which  had  been  decided  in  the  courts  of  this  state,  particularly  Pratt  and 
Kinsey  vs.  Bradun  and  Bice;  and  Crane's  adm'r.  vs.  Lowher's  adm'r.  The 
first  of  these  cases  recognized  the  general  jurisdiction  of  chancery  over 
awards ;  and  the  latter  denied  it  in  a  case  where  a  court  of  law  had  con- 
current jurisdiction  and  was  possessed  of  the  cause. 

Chief  Justice  Harrington  delivered  the  opinion  of  the  comi;. 

Harrington,  Chief  Justice  : 

"  The  important  preliminary  point  to  be  decided  in  this  cause  is  the 
question  of  jurisdiction  of  the  court  of  chancery  over  awards  generally 
and  over  the  award  in  this  case  in  particular.  The  common  law  jurisdic- 
tion of  courts  of  chancery  in  England  previously  to  the  statute  of  ninth 
and  tenth  William  third,  over  awards  in  the  ordinary  cases  of  corruption, 
misbehavior,  excess  of  power  and  mistakes  of  fact  admitted  by  the  arbi- 
trator, is  conceded ;  and  it  seems  by  the  cases  in  Bunhury  and  2d  Vezey, 
jr.,  that  this  jurisdiction  was  not  ousted  by  that  statute,  though  it  gives 
to  awards  a  more  obligatory  force  than  they  had  before.  But  we  appre- 
hend that  awards  in  this  country,  or  rather  judgments  after  awards,  stand 
upon  a  very  different  footing  from  awards  in  England,  both  from  the 
nature  of  the  proceedings  under  them,  and  also  by  force  of  our  acts  of  as- 
sembly regulating  those  proceedings,  and  giving  to  them  their  obligatory 
character  and  efficacy.  In  England  it  is  not  necessary  that  the  arbitrators 
should  act  vmder  the  obligation  of  an  oath;  nor  even  that  the  witnesses 
should  in  all  cases  be  subjected  to  that  test  of  truth  which  is  invariably 
applied  in  all  our  judicial  proceedings;  but  the  great  distinction  is,  that  in 
that  country  the  award  is  not  followed  by  the  action  of  a  court  of  law 
rendering  upon  it  judgment  of  confirmation  or  reversal.  Here  the  mode 
of  proceeding  is  in  all  respects  similar  to  that  in  a  court  of  justice ;  it  is 
in  fact  the  substitution  of  three  or  more  referees  in  place  of  a  jury,  and 
it  is  invariably  followed,  (we  speak  now  of  references  under  a  rule  of 
court,)  by  the  inspection  and  adjudication  of  the  court,  which  examines 
into  the  regularity  of  the  proceedings  of  the  referees,  hears  any  objections 
which  may  be  made  to  the  award,  and  renders  judgment  thereupon.  It  in 
fact  assumes  and  adopts  the  act  of  the  referees  as  its  own,  making  it  the 
basis  of  its  own  judgment.  There  is  therefore  much  reason  arising  from 
the  nature  of  the  proceeding  for  giving  to  the  judgments  of  our  courts 
upon  awards  a  superior  force  to  awards  in  England.  It  is,  as  regulated  by 
our  laws,  an  extremely  beneficial  mode  of  settling  disputes,  affording  to  the 
parties  a  convenient,  speedy  and  cheap  means  of  obtaining  justice ;  and  we 
apprehend  that  the  policy  of  our  law  is  to  favor  awards,  and  that  the  true  in- 
tention and  design  of  our  several  acts  of  Assembly  is  to  place  them  upon 
the  same  footing  with  the  verdict  of  a  jury  in  all  cases  where  they  are  ap- 
proved and  confirmed  by  the  judgment  of  a  court.  As  it  regards  therefore 
the  general  jurisdiction  of  Chancery  in  this  state  over  judgments  on  awards 


II 


Waples'  adm'x.  vs.  Waples  et  al.  399 


I 


court  of  justice,  and  after  the  only  party  having  a  perfect  knowledge 
of  the  whole  case  is  dead,  it  cannot  be  expected  that  we  can  give  a 

it  is  the  strong  inclination  of  this  court  to  confine  it  to  those  cases  where  the 
court  of  chancery  is  authorized  to  examine  into  and  decree  upon  the  judg- 
ment of  a  court  of  common  law  rendered  upon  the  verdict  of  a  jury.  There 
may  be  certain  other  cases  where  from  fraud,  corruption  or  misbehavior  in 
the  arbitrators  it  might  be  necessary  to  make  them  parties  in  equity  to  ob- 
tain a  discovery,  and  in  which  an  extension  of  the  jurisdiction  of  the  court 
of  equity  over  awards  beyond  the  limits  here  assigned,  might  be  allowed. 

In  this  particular  case,  upon  this  principle,  and  for  the  additional 
reason  that  there  was  sufficient  and  ample  remedy  in  the  Court  of  Com- 
mon Pleas,  which  court  being  possessed  of  the  cause  and  competent  to 
give  full  relief,  sui)erseded  and  ousted  the  jurisdiction  of  chancery,  and 
upon  the  authority  of  the  case  of  Crane's  adm'r.  vs.  Lowher's  adm'r.  here- 
tofore decided  in  this  court,  we  are  unanimously  of  opinion  that  the 
court  of  chancery  had  not  jurisdiction  to  inquire  into  and  set  aside  this 
award,  and  consequently  that  the  decree  of  the  chancellor  dismissing  the 
case  stated  in  the  nature  of  a  bill,  ought  to  be  affirmed. 

But  supposing  the  chancellor  had  jurisdiction  to  inquire  into  this 
award,  was  there  sufficient  ground  of  objection  appearing  to  him  and  now 
to  this  court,  to  authorize  the  setting  it  aside  after  the  lapse  of  so  great 
a  time,  and  so  long  an  acquiescence  as  has  occurred  in  this  case. 

The  great  objection  urged  in  the  argument  of  the  cause  is,  that  the  arbi- 
trators allowed  interest  on  the  arrears  of  an  annuity  which  it  is  alledged  is 
contrary  to  the  rule  of  chancery  now  settled  in  England;  and  it  is  con- 
tended that  this  mistake  of  the  law  was  a  sufficient  ground  to  set  aside  the 
award,  it  being  an  excess  of  the  powers  delegated  to  the  referees.  It  can- 
not be  denied  that  the  English  decisions  on  the  subject  of  allowing  interest 
on  arrears  of  an  annuity  are  variant  and  conflicting,  nor  that  there  are  cases 
where  interest  has  been  allowed,  particidarly  where  the  annuity  was  for  the 
maintenance  of  the  annuitant ;  and  the  rule  of  the  English  law  is  at  least 
so  far  doubtful  as  that  this  court  would  be  induced  to  give  it  a  much  more 
deliberate  consideration  than  we  now  have,  in  a  case  requiring  a  decision  of 
that  question.  Some  of  the  later  cases  would  seem  to  establish  a  rule  against 
the  allowance  of  interest ;  excluding  the  consideration  of  the  peculiar  cir- 
cumstances arising  in  each  case  on  the  ground  that  circumstances  of  com- 
miseration or  hardship  are  too  indefinite  and  unlimited  as  reasons  for  de- 
X)arting  from  a  great  rule  of  equity.  But  doubtful  as  it  is  whether  the  law 
be  now  absolutely  settled  in  England  against  the  allowance  of  interest  on 
aimuities  we  may  at  least  affirm  that  no  such  rule  is  settled  in  this  state; 
for  giving  to  the  decisions  of  our  court  of  chancery  only  that  authority  to 
which  they  are  unquestionably  entitled,  they  go  to  establish  a  different  prin- 
ciple from  that  which  we  have  supposed  the  later  decisions  in  England  seem 
inclined  to  establish.  Our  Court  of  Chancery  has  more  than  once  decreed 
interest  on  annuities;  and  particularly  in  the  case  of  Unity  Buckmaster's 
adm'r.  vs.  Charles  Buckmaster  and  Charles  Hamm,  which  was  a  bill  for 
the  arrears  of  an  annuity  granted  by  the  will  of  Thomas  Buckmaster  to 
his  widow,  and  charged  upon  his  real  estate.  The  court  of  chancery  in  Kent 
county,  did,  in  1829,  decree  the  arrears  of  the  annuity  with  interest  from 
the  death  of  the  testator,  and  that  against  a  purchaser  of  the  land  charged. 
In  "Walcott's  administrator  against  the  same  defendants  for  another  an- 
nuity under  the  same  will,  interest  was  also  allowed;  though  the  amount  in 
this  case  was  agreed  upon  by  the  parties,  who  allowed  interest  on  the  author- 
ity, perhaps,  of  the  other  case.    In  this  state  then  we  may  at  least  say  that 


400  Waples'  adm'x.  vs.  Waples  et  al. 

perfect  explanation  of  all  the  circumstances  connected  wtih  it. 
Doubts  may  arise  on  the  whole  case  of  the  fairness  of  the  transaction, 
but  the  court  will  not,  on  a  mere  doubt,  disturb  matters  so  long  set- 
tled; much  less  will  they  presume  a  transaction  fraudulent  because  it 
is  not  now  susceptible  of  the  clearest  explanation.  Second.  The  de- 
cree in  this  case  is  erroneous  because  there  are  not  proper  parties  to 
the  cause.  The  decree  is  in  favour  of  George  Hickman  and  Lewis 
West,  who,  with  William  D.  Waples,  are  the  parties  complainant, 
but  who  have  not  a  particle  of  interest  in  the  suit.  Hickman  and 
West  had  given  up  their  interest  in  the  judgment,  and  re-assigned  it 
to  William  D.  Waples  before  the  bill  was  filed. 

Frame,  Attorney-general,  for  appellee.  The  taint  of  fraud  al- 
ways abides  and  will  vitiate  a  transaction  wherever  and  whenever  it 
is  discovered.  I  am  aware  that  when  parties  submit  their  cause  to 
arbitrators;  judges  of  their  own  choosing,  their  decision  should  not 
be  slightly  interrupted.  If  such  a  judge,  so  chosen,  should  commit 
an  error  either  in  law  or  fact,  even  a  plain  mistake;  if  it  be  free 
from  fraud  or  collusion  the  court  of  chancery  would  not  relieve 
against  it.  I  agree  also  that  our  courts  have  gone  great  length  in  sus- 
taining awards;  and  though  the  jurisdiction  of  chancery  over  them 
has  been  conceded,  it  has  been  confined  within  narrow  limits  (Bee- 
son's  adm'rs.  vs.  Beesons  ex'r.)  but  these  limits  are  wide  enough 
to  embrace  a  case  of  glaring  fraud — fraud  not  only  on  the  party  but 
on  the  referees — fraud  now  seen  and  admitted  by  the  referees  them- 
selves. And  such  a  case  is  this.  Can  it  be  that  for  such  a  case  equity 
has  no  relief?  The  rules  on  the  subject  of  inquiring  into  and  setting 
aside  awards  in  England  are  somewhat  confused  on  account  of  the 
different  kinds  of  awards  in  use  there.  There  are  three  kinds — first, 
general,  where  the  parties  submit  to  arbitrators  without  calling  in 
the  aid  of  a  court;  second,  where  during  the  pendency  of  a  suit  in 
court  the  parties  refer  it  to  arbitration,  and  this  also  is  a  reference  at 
common  law;  and  third,  awards  under  the  statute  ninth  and  tenth 
William,  which  enabled  parties  where  no  suit  previously  existed  to 
refer  their  controversies  and  make  that  reference  a  rule  of  court. 
That  statute  expressly  makes  the  award  conclusive  except  in  certain 
specified  cases  and  within  a  narrow  limitation  of  time.  That  statute 
has  never  been  adopted  in  this  state;  we  have  an  act  of  our  own  of 
an  old  date,  and  all  that  is  necessary  for  our  purposes.  These  seve- 
ral kinds  of  awards  in  England  introduce  some  confusion  in  the 

there  is  no  uniform  nile,  fully  settled,  which  in  every  case  prevents  a  court 
of  chancery,  or  of  law,  from  allowing  interest  on  the  arrears  of  an  an- 
nuity. Did,  therefore,  the  referees  in  this  case,  by  allowing  interest,  vio- 
late a  settled  and  fixed  principle  of  law,  which  it  seems  to  be  admitted 
they  must  have  done  to  authorize  the  vacating  their  award  on  this  ground  ? 
But  supposing  this  rule  of  equity  settled  against  the  allowance  of  inte- 
rest, would  not  the  case  come  within  the  scope  of  the  authority  cited  from 
2  Barn  and  Alderson,  691,  which  decides  that  an  arbitrator  is  not  bound 
by  a  rule  of  practice  adopted  by  the  courts  of  law  for  general  convenience. 
In  that  ease  the  arbitrator  allowed  interest  against  the  uniform  rule  of 
court,  and  it  was  held  not  to  be  a  sufficient  ground  for  setting  aside  hia 
award.  The  reasoning  of  the  learned  judges  in  deciding  that  cause  is  very 
ptro^s:  in  its  application  to  the  present  case,  as  well  as  the  point  actually 
decided. 

The  decree  of  the  chancellor  was  unanimously  affirmed. 


Reybold  vs.  Dodd's  adm'r.  401 

books,  as  in  the  passage  cited  from  Maddoch,  295,  8,  In  such  cases 
awards  under  the  statute  are  always  meant,  and  that  statute  is  very 
different  from  our  act  of  Assembly.  As  to  that  act  placing  awards 
on  the  footing  of  verdicts,  it  can't  effect  the  question  because  fraud 
equally  vitiates  a  verdict  and  can  be  relieved  against.  1  Doll.  314; 
Kid.  34,  n.  a.;  Caldwell  on  Arbitration,  16,  17,  &.;  Stat.  Wm. 
Id.  184;  Kid.  327  to  330,  354,  358;  2  Hovenden  on  Frauds,  240;  1 
Mad.  Ch.  296;  2  Johns.  Rep.  361,  364;  Dig.  112.  Second.  Don't 
think  it  necessary  to  examine  at  length  the  position  that  a  court  of 
law  has  the  exclusive  jurisdiction  of  this  question.  Fraud  is  the  pe- 
culiar subject  of  chancery  jurisdiction.  I  agree  that  where  a  court  of 
law  does  inquire  into  fraud  it  goes  on  equitable  principles;  but  the 
forms  of  proceeding  in  those  courts  do  not  enable  them  to  pursue 
fraud  to  any  extent.  This  was  the  origin  of  chancery  jurisdiction. 
The  application  at  law  in  this  case  was  refused  in  limine  on  the 
ground  that  it  was  too  late  there  and  expressly  because  the  party 
iiad  a  resort  to  equity.  The  general  rule  at  law  is  that  the  court  will 
not  inquire  into  awards  after  the  term  at  which  the  report  is  made. 
The  proceedings  are  too  summary  there  to  admit  of  an  unlimited  in- 
quiry into  awards.  Several  years  had  elapsed  in  this  case  before  the 
fraud  was  discovered.  Third.  I  come  to  the  principal  question: 
Has  the  fraud  been  made  manifest  here  on  the  proof?  I  do  not  con- 
tend that  fraud  shall  be  presumed,  but  this  does  not  mean  that  a 
court  in  investigating  fraud  shall  not  draw  conclusions  from  facts: 
this  is  not  presuming  fraud  but  ascertaining  it.  1  Hovenden,  21, 
18.  Fourth.  Were  Hickman  and  West  improperly  made  parties. 
They  stood  for  a  long  time  parties  on  the  record,  entitled  to  the 
judgment  and  might  have  received  the  money.  But  additionally 
this  is  only  an  interlocutory  decree;  the  chancellor  has  full  power  to 
make  further  decree;  and,  if  it  be  so  that  Hickman  and  West  have 
no  longer  any  interest  in  this  question,  he  may  dismiss  the  bill  as 
to  them. 

The  court  affirmed  the  decree  of  the  chancellor. 

Layton,  for  appellant. 

Frame,  for  appellee. 


PHILIP  REYBOLD  vs.  ELIHU  JEFFERSON",  adm'r.  of  JOB  S. 

DODD,  deceased. 

ELIHU  JEFFERSON,   adm'r.   of  JOB    S.   DODD,   deceased,   vs. 
PHILIP  REYBOLD. 

The  chancellor  has  not  the  power  to  appoint  a  master  in  chancery. 

On  a  bill  for  an  account  of  partnership  transactions  an  interlocutory  decree  to 

account  is  decisive  of -the  existence  of  a  partnership,  but  not  of  its  extent  or 

terms. 
If  a  partnership  be  established  it  is  prima  facie  one  of  equal  interests. 
The  court  will  not  decree  a  division  of  subsequent  profits  after  the  dissolution 

of  a  partnership   merely  because  the  withdrawing   partner's  share   of  the 

profits  already  accrued  are  not  paid  over  to  him. 
One  partner  is  not  entitled  to  compensation  for  his  attention  to  the  business 

without  a  special  contract  to  that  effect. 
The  chancellor  may  direct  an  issue  to  a  court  of  law  at  any  time  before  final 

hearing. 

Appeals  from  the  decree  of  the  chancellor.     Newcastle. 

51 


403  Reybqld  vs.  Dodd's  adm'r. 

Mr.  Black  did  not  sit  having  been  of  counsel  below. 

The  bill  was  filed  in  1826  by  Job  S.  Dodd,  for  an  account  of  part- 
nership transactions  between  him  and  Philip  Reybold  in  the  business 
of  buying  and  butchering  cattle,  sheep  and  other  stock  for  sale.  The 
answer  totally  denied  that  any  such  partnership  had  ever  existed; 
and,  on  the  hearing  at  the  July  term,  to  wit,  the  7th  of  July,  1828, 
the  chancellor  (Ridgely)  decreed  "that  Philip  Reybold  the  deft, 
aforesaid,  shall  come  to  a  full,  fair,  true  and  particular  account  with 
the  said  complainant  Job  S.  Dodd,  for  all  the  property,  effects,  rights 
and  credits  of  the  said  concern,  and  of  all  the  profits  made  by  or  on 
account  or  in  behalf  of  the  said  concern,  and  of  all  transactions  since 
the  commencement  of  the  said  concern  as  aforesaid,  touching  the 
same,  and  exhibiting  the  true  balance  due  to  the  said  complainant 
from  the  said  concern,  and  on  or  before  the  fifteenth  day  of  October 
next,  shall  file  an  account  in  this  court,  in  which  he  shall  set  forth 
and  discover  a  just,  full,  true  and  perfect  account  of  all  the  business 
and  transactions  of  the  said  concern  of  Philip  Reybold  and  Job  S. 
Dodd,  from  its  establishment  up  to  the  seventh  day  of  the  present 
month  of  July,  "with  liberty  to  the  complainant  to  except,  and  a 
reservation  to  the  chancellor  to  make  such  other  and  final  order  and 
decree  in  the  premises  as  he  may  deem  just  and  equitable." 

An  appeal  was  taken  by  Reybold  from  this  interlocutory  decree 
of  the  chancellor  to  the  late  High  Court  of  Errors  and  Appeals; 
which  court,  at  the  June  term,  1829,  affirmed  the  said  decree  of  the 
chancellor  "in  all  respects"  and  remanded  the  record  to  the  court 
below. 

The  said  accounts  having  been  filed  and  excepted  to,  and  additional 
accounts  ordered  and  filed  and  excepted  to,  and  depositions  taken  on 
both  sides;  and  the  depositions  having  been  read  to  the  chancellor, 
on  the  15th  of  March,  A.  D.  1830,  the  defendant's  solicitor  moved 
the  court  for  an  order  that  the  following  issues  of  fact  be  tried  at 
law,  to  wit:  "whether  or  not  the  partnership  in  the  business  of 
slaughtering  cattle,  sheep  and  hogs  between  the  said  Job  S.  Dodd 
and  the  said  Philip  Reybold  has  been  dissolved?  and,  if  dissolved, 
when  was  the  said  partnership  dissolved?  which  order  the  chancellor 
refused  to  make.  Further  accounts  having  been  filed  under  the 
orders  of  the  chancellor  and  excepted  to,  and  depositions  taken;  on 
the  9th  of  March,  1831,  the  cause  came  on  to  be  heard  before  the 
chancellor  upon  the  exceptions  filed,  the  depositions  having  been 
in  part  read,  it  was  "ordered,  adjudged  and  decreed  by  the  chan- 
cellor, that  the  accounts  and  exceptions,  together  with  the  deposi- 
tions filed  in  this  cause,  be  referred  to  William  P.  Brobson  to  take 
and  state,  settle  and  adjust  an  account  between  the  parties  complain- 
ant and  defendant  touching  and  concerning  the  concerns  and  busi- 
ness of  the  partnership  heretofore  subsisting  between  them  and  men- 
tioned in  the  pleadings  in  this  cause,  on  or  before  the  first  day  of 
July  next,  (setting  forth,  showing,  &c.)  and  exhibiting  the  true 
balance  due  to  the  said  complainant  from  the  said  concern;  and  that 
either  party  may  be  at  liberty  to  file  exceptions  to  the  said  account; 
and  that  either  party  may  be  at  liberty  to  prove  any  matter  or  thing  in 
relation  to  the  said  account,  by  depositions  taken  in  the  usual  form; 
and  that  the  said  William  P.  Brobson  have  power  to  examine  wit- 


Eeybold  vs.  Dodd's  adm'r.  403 

nesses  touching  the  several  matters  above  mentioned  or  any  of  them; 
and  that  the  said  William  P.  Brobson  have  power  to  compel  the  pro- 
duction of  books,  papers  and  documents,  or  other  writing  as  may  be 
in  possession  or  power  of  either  of  the  parties  which  he  shall  think 
ought  to  be  produced  in  taking  said  account." 

The  account  stated  by  Mr.  Brobson  having  been  returned  with  a 
report  explanatory  of  the  same,  and  with  the  depositions  taken  by 
him;  exceptions  on  both  sides  were  taken  to  the  said  account  and 
rule  commissions  on  both  sides  "February  16,  1832,  the  excep- 
tions filed  to  the  accounts  in  this  cause  coming  on  to  be  heard  on 
this  day,  and  on  the  17th,  18th  and  20th,  the  allegations,  exhibits 
and  proofs  being  examined  and  considered  and  debated  by  counsel 
on  the  20th,  the  counsel  for  the  deft,  moved  that  the  following 
feigned  issue  be  directed  to  be  tried  at  law,  viz:  "whether  the  saia 
Job  S.  Dodd  and  Philip  Eeybold  were  or  were  not  partners  in  the 
butchering  business;  if  they  were  partners,  what  was  the  interest  of 
each  partner  in  the  firm,  and  how  long  the  said  partnership  continu- 
ed? The  counsel  for  the  complainant  opposing  the  directing  a  feigned 
issue  or  issues.  Whereupon,  this  21st  day  of  February,  A.  D.  1832, 
"the  chancellor  considering  that  in  this  stage  of  the  cause  the  deft, 
was  not  entitled,  on  his  motion,  to  an  order  for  a  feigned  issue,  re- 
fused to  direct  the  same,  reserving  to  himself  the  right  hereafter  to 
direct  an  issue  or  issues,  if  he  should  be  of  opinion  it  would  be  neces- 
sary so  to  do  for  his  information,  and  the  counsel  were  ordered  to 
proceed  with  the  further  debating  of  the  said  exceptions.  And  now 
to  wit,  this  fifth  day  of  April,  A.  D.  1832.  It  is  ordered  by  the 
chancellor  that  a  feigned  issue  be  formed  and  tried  in  the  ordinary 
manner  between  the  above  parties  by  a  jury  of  Newcastle  county,  at 
the  bar  of  the  Superior  court,  in  Newcastle  county,  at  the  next  or 
any  subsequent  term  of  the  said  court,  to  inquire,  ascertain  and  de- 
termine whether  or  not  the  partnership  in  the  business  of  slaughter- 
ing cattle,  sheep  and  hogs  between  the  said  Job  S.  Dodd  and  the  said 
Philip  Key  bold  has  been  dissolved?  and  if  dissolved  when  was  the 
said  partnership  dissolved?" 

Upon  this  issue  it  was  found  "that  the  partnership  in  the  business 
of  salughtering  cattle,  sheep  and  hogs  between  the  said  Job  S.  Dodd 
and  the  said  Philip  Heybold  has  been  dissolved;  and  that  the  said 
partnership  was  dissolved  on  the  sixth  day  of  July,  A.  D.  1826." 

The  cause  came  on  for  final  hearing  on  the  15th  September,  1832, 
and  the  chancellor,  after  sundry  alterations  and  charges  in  the  ac- 
count stated  by  William  P.  Brobson,  made  his  final  decree  on  the 
25th  of  February,  1833,  that  the  deft,  pay  to  complainant  the  sum 
of  $1227  23,  being  the  moiety  of  the  profits  of  the  concern  on  the 
sixth  July,  1826,  together  with  the  sum  of  $486  62,  interest  on  the 
said  sum  from  that  date,  making  together  the  sum  of  $1715  85 ;  and 
that  the  deft,  pay  costs,  &c. 

Whereupon  an  appeal  was  prayed  by  both  sides  and  granted. 

Mr.  Gray  on  the  part  of  Dodd's  adm'r.  We  object  to  the  decree 
of  the  chancellor;  first.  Because  it  varies  from  and  violates  the  de- 
cree of  the  7th  of  Julv,  J  828,  as  affirmed  in  the  High  Coxirt  of 
Errors  and  Appeals.  That  decree  established  not  only  the  existence 
of  a  partnerhsip,  but  its  duration  up  to  the  date  of  the  decree.    If  this 


m 


404  Reybold  vs.  Dodd's  adm'r. 

was  wrong  the  defts.  remedy  was  by  petition  for  rehearing  before 
the  chancellor  himself  or  by  appeal.  He  took  the  latter  course  and 
he  is  now  concluded.  The  issue  afterwards  sent  to  law  for  the  pur- 
pose of  determining  the  continuance  of  the  partnership  was  wrong. 
It  was  opening  a  matter  already  closed.  Nothing  remained  after 
the  first  interlocutory  decree,  but  to  ascertain  the  amount  of  the  pro- 
fits made  by  the  concern.  And  for  this  purpose  the  reference  to  the 
master  was  necessary  and  proper.  It  was  not  a  delegation  of  judi- 
cial power.  The  master  was  to  ascertain  facts  and  state  an  account. 
Such  an  officer  the  court  is  authorized  to  appoint  under  its  general 
power  of  making  rules  proper  for  the  expediting  of  causes.  4  Simons'^ 
Rep.  539;  Davis  vs.  Johnson;  4  Russel  247;  2  Bligh.  215;  Chitti/ 
Dig.  463;  2  Mad.  Gh'y.  483;  Dig.  106.  And  if  the  reference 
should  be  considered  by  this  court  as  irregular  there  is  still  sufficient 
evidence  in  the  cause  for  it  to  decree  upon  as  all  the  testimony  from 
which  Mr.  Brobson  stated  his  account  is  before  the  court.  Whether,, 
therefore,  we  regard  this  report  as  the  statement  of  an  officer  legally 
authorized  to  make  such  report  or  not,  if  we  can  substantiate  it  by 
the  evidence  in  the  cause,  this  court  will  be  equally  compelled  to 
make  the  same  decree.  Second.  The  issue  sent  to  law  was  wrong, 
secondly,  because  it  was  granted  after  an  issue  had  once  been  refused 
in  the  cause.  The  same  interlocutory  motion  on  the  same  matter 
cannot  be  repeated.  2  Johns.  Ch.  Rep.  211.  An  interlocutory 
order  has  the  same  effect  as  an  interlocutory  judgment  at  law;  such 
as  a  judgment  quod  computet.  2  Atk.  303,  284,  (403.)  1  Johns. 
Ch.  Rep.  189;  2  Esp.  Rep.  608.  Third.  If  the  issue  was  right 
and  the  partnership  is  to  be  confined  to  the  period  fixed  by  the  jury 
as  the  time  of  its  dissolution,  the  defendant  is  still  chargeable  with 
half  the  proceeds  after  that  time,  as  it  is  proved  that  he  continued 
the  same  business  on  the  joint  capital.  If  after  dissolution  one  of  the 
partners  continue  to  trade  on  the  joint  stock  he  must  account  for  the 
profits.  Gow.  254;  17  Vezey  298;  15  do.  226,  (222)  1  Jacob  & 
Walker  278,  S.  C;  2  Russel  Ch.  Rep.  325,  S.  C.  Fourth.  The 
allowance  to  Eeybold  for  interest  on  the  investment  of  capital  was 
also  erroneous.  The  business  supported  itself;  the  capital  was  con- 
stantly revolving  and  returned  immediately. 

We  therefore  ask  a  correction  of  the  decree  in  those  particulars; 
but  not  a  reversal,  as  the  decree  is  in  our  favor  and  there  is  sufficient 
matter  here  to  correct  it  by, 

Mr.  Frame,  for  Reybold.  First.  The  reference  to  Mr.  Brobson 
was  irregular,  and  the  decree  being  founded  on  his  report  is  erro- 
neous. The  chancellor  has  no  power  under  the  constitution  and 
laws,  nor  under  the  usage  and  practice  of  the  court  to  delegate  to 
another  such  authority  as  he  did  in  this  case  to  Mr.  Brobson.  Ir, 
will  scarceh:  be  controverted  that  judicial  power  cannot  be  delegated 
without  express  authority  of  law.  5  Com.  Dig.  Officer,  D.  1.  2. 
pp.  135,  6.  Did  the  chancellor  delegate  to  Mr.  Brobson  any  por- 
tion of  the  judicial  power  with  which  he  is  invested?  Look  at  the 
decree.  It  commissions  Brobson  to  do  acts  which  properly  belonged 
to  himself.  It  refers  to  him  the  accounts  and  exceptions  together 
with  the  depositions  to  take,  adjust  and  settle  an  account.  It  author- 
ized  him    to    summon    witnesses,    take    depositions,    and    ascertain 


Eeybold  vs.  Dodd's  adm'r.  405 

what  was  due  from  respondent  to  complainant.  TJie  power  of 
making  up  a  judgment  on  the  facts  was  given  to  him.  This  is  the 
business  of  the  chancellor  alone.  It  is  very  different  from  the  case 
■of  directions  to  a  mere  clerk  to  draw  up  accounts.  Accounts  were 
stated  already  under  two  decrees;  exceptions  were  filed;  depositions 
taken;  the  case  stood  for  hearing;  it  was  actually  under  lioarmg; 
when  it  was  referred  to  a  master  to  determine  a  result;  a  general  ba- 
lance— after  allowing  and  disallowing  charges  according  to  his  judg- 
ment. Is  this  any  thing  less  than  giving  him  the  power  to  decide 
the  cause?  It  will  not  be  denied  that  Brobson  was  appointed  in  this 
oase  a  master  in  chancery,  to  perform  the  duties  of  such  an  officer 
according  to  the  practice  in  England.  There  is  such  an  officer  known 
to  their  system;  established  in  periods  of  remote  antiquity.  It  is 
true  the  officer  is  appointed  by  the  chancellor,  but  the  office  always 
^ixists  and  is  recognized  by  their  system.  Does  our  constitution  re- 
-oognize  any  such  officer?  Does  it  authorize  any  human  being  to 
i^,xercise  judicial  functions  but  the  judges  appointed  according  to  its 
iorms?  If  such  an  office  exists  here  who  is  to  fill  it?  The  constitu- 
tion says  the  governor  shall  fill  all  offices  created  or  which  shall  be 
i3reated  by  law,  unless  otherwise  provided  for;  and  if  this  master- 
ship is  an  office  known  to  our  institutions,  the  governor  and  not  the 
chancellor  must  fill  it.  Does  the  office  spring  out  of  the  necessity  of 
^:he  case  ?  If  it  does  we  are  still  brought  back  to  the  position  that  ju- 
(iicial  power  cannot  be  delegated  without  express  law;  nor,  indeed, 
i^an  any  delegated  power.  Has  it  been  established  by  practice?  We 
Imow  of  no  such  practice  and  no  precedent  for  the  delegation  of  such 
power  as  this.  There  is  nothing  in  the  act  of  Assembly  referred  to 
ihat  authorizes  such  a  practice,  and  if  it  does  not  go  to  the  extent  of 
authorizing  a  delegation  of  judicial  power  it  cannot  avail  them.  An 
act  to  regulate  proceedings  in  chancery  cannot  authorize  the  chan- 
^?ellor  to  put  a  case  out  of  court  and  refer  it  to  another's  decision. 
En  4  CoTce's  Inst.  88,  it  is  said  that  the  old  statutes  where  they  speak 
of  the  chancellor's  lieutenant  do  not  mean  a  deputy,  for  the  chancel- 
lor cannot  appoint  a  deputy;  but  they  refer  to  a  locum  tenens  such 
as  the  master  of  the  rolls.  This  shows  the  existence  of  the  office  in 
England  from  remote  times  as  an  office,  for  the  master  of  the  rolls  is 
but  a  master  in  chancery.  And  he  has  judicial  authority.  He  de- 
cides questions,  and  his  decision  binds  the  chancellor.  His  report  is 
tjonclusive  except  under  particular  circumstances.  Such  an  officer  is 
not  known  to  our  system,  nor  can  he  be  created  without  express  legal 
i^anction.  I  conclude  then  that  the  order  of  the  9th  March,  1831, 
referring  this  cause  to  William  P.  Brobson  was  not  within  the  con- 
stitutional power  of  the  chancellor.  That  the  master's  report  is 
mthout  lawful  warrant  and  irregular,  and  the  decree  which  is  foun- 
ded upon  it  is  erroneous  and  must  be  reversed.  And  even  if  the 
])ower  delegated  to  Mr.  Brobson  had  been  authorized  it  was  vitiated 
by  the  mode  of  its  exercise.  He  examined  Earle  and  other  wit- 
nesses who  had  been  examined  in  chief  and  their  depositions  pub- 
lished. Now  this  could  not  be  done  even  before  a  regularly  consti- 
1uted  master  in  England  without  special  direction.  2  Johns.  Chy. 
Rep.  501 ;  Remson  vs.  Remson,  2  Mad.  Chy.  513-4.  The  report 
then  was  founded  on  improper  testimony. 


406  Reybold  vs.  Dodd's  ADu'n. 

Second.  As  to  the  issue.  Had  the  chancellor  the  power  to  send 
an  issucsto  law  to  try  the  duration  of  this  partnership  at  the  time  he 
did  send  it?  We  aflbnn  that  he  had.  It  is  contended  that  the  inter- 
locutory decree  of  the  7  July,  1828,  as  aflfirmed  on  appeal  closed  this 
subject,  and  the  chancellor  had  no  longer  any  power  to  direct  an 
issue.  This  we  deny.  A  decree  to  account  is  always  considered 
in  our  practice  as  merely  formal;  deciding  nothing.  The  chancellor 
proceeds  in  a  cause  far  enough  to  see  that  there  is  reason  to  call  on 
the  defendant  for  an  account,  and  he  directs  the  account  reserving  all 
power  to  decree  in  the  cause  as  shall  seem  just  on  the  coming  in  of 
the  account.  How  little  does  a  chancellor  know  of  a  partnership 
cause  before  the  order  to  account!  It  is  almost  a  matter  of  course 
to  begin  the  cause  by  such  an  interlocutory  decree.  And  yet  we  are 
told  that  it  puts  an  end  to  all  investigation  except  in  the  mere  matter 
of  profits.  On  the  contrary,  it  decides  nothing  except  that  the  com- 
plainant has  made  out  a  prima  facie  case  entitling  him  to  put  the 
other  party  to  an  account  in  the  premises;  and  on  the  filing  the  ac- 
count all  those  questions  of  duration,  extent,  mutuality  of  interest,, 
and  amount  of  profit  are  to  be  considered.  The  first  matter  that 
arises  is  the  extent  of  the  partnership.  This  is  a  fact  proper  to  be 
tried  by  a  jury,  and  if  the  chancellor  cannot  direct  an  issue  to  inform 
himself  on  it,  he  will  not  be  at  liberty  to  get  at  the  fact  in  any  other 
way,  or  to  know  it  at  all.  Is  there  any  thing  in  the  decree  itself  to 
give  it  this  conclusive  character?  (ante  p.  402.)  On  the  contrary 
there  is  an  express  reservation  to  the  chancellor  to  make  such  further 
and  other  decree  as  he  should  deem  right.  On  its  appearing  to  him 
by  the  return  of  an  issue  or  otherwise  that  the  copartnership  was  in 
fact  determined  on  another  day  than  that  to  which  he  had  directed 
the  account  to  be  brought  up  to,  it  was  perfectly  competent  for  him 
so  to  vary  his  decree.  And  no  petition  for  rehearing  was  necessary. 
A  petition  to  the  chancellor  to  alter  a  decree  which  he  expressly  re- 
served the  power  to  alter ;  to  rehear  an  interlocutory  order !  I  ques- 
tion if  such  a  petition  was  ever  filed;  certainly  never  in  the  case  of  a 
mere  interlocutory  order  to  account.  Did  the  afiirmance  on  appeal 
make  this  decree  any  more  conclusive?  Not  so.  It  but  left  the  de- 
cree as  it  was — affirmed  it  in  all  respects — it  established  but  did  not 
extend  it;  confirmed  it  as  it  was  but  added  nothing  to  it.  2  Mad, 
Chy.  483-4,  474,  cited  by  Mr,  Gray,  refers  to  the  rehearing,  a  final 
decree.  So  is  4  RiLSsel  247  (2  Bligh.  .)  The  motion  in  that  case 
for  an  issue  was  not  only  after  final  decree  but  on  appeal  and  in  the 
House  of  Lords.  The  issue  in  this  case  was  not  directed  on  our  mo- 
tion or  on  any  motion,  but  it  was  ordered  by  the  chancellor  himself, 
for  his  own  information.  And  I  lay  it  down  as  an  incontrovertible 
position,  that  either  in  England  or  in  this  state,  the  chancellor  has 
the  right  of  his  own  motion  to  direct  an  issue  at  any  stage  of  a  cause 
before  final  decree.  Such  an  order  can  never  be  error.  2  Mad.  Chy. 
474  to  479 ;  and  the  power  is  expressly  given  if  not  enlarged  by  our 
statute.  Digest  103.  It  is  here  made  his  duty.  Objections  have 
been  made  to  the  form  of  this  issue;  that  it  involves  questions  of 
law;  it  is  true  that  a  partnership  may  be  dissolved  by  operation  of 
law;  but  the  fact  of  dissolution  differs  from  the  cause  if  it  and  the 
former  only  was  put  to  the  jury.    It  is  frequently  difficult  to  strip  an 


Reybold  vs.  Dodd's  adm'r.  407 

issue  of  every  thing  like  legal  questions,  but  the  question  of  an  ac- 
tual dissolution  of  a  partnership  is  a  naked  fact  which  a  jury  may 
dott'nnine  whatever  may  have  been  its  cause;  as  by  death;  marriage; 
efllux  of  time;  agreement  and  notice  given,  &c.  &c.  2  Campb.  45. 
Peacock  vs.  Peacock. 

Third.  The  chancellor  erred  in  his  final  decree  in  assuming  that 
Reybold  and  Dodd  were  equal  partners,  and  thus  decreeing  to  Dodd 
one  half  of  the  profits.  There  is  not  a  word  of  proof  on  this  subject 
in  the  whole  cause.  The  answer  denies  it,  and  this  is  to  be  taken  as 
true  if  there  be  no  proof.  On  this  ground  the  decree  must  be  re- 
versed and  the  cause  sent  back  to  chancery  to  ascertain  what  interest 
Dodd  had  in  the  concern. 

Fourth.  Was  Dodd  entitled  to  a  share  of  the  profits  after  the  dis- 
solution? I  am  free  to  admit  the  principle,  that  if,  after  the  dissolu- 
tion of  a  partnership,  one  of  the  partners  continues  the  business  with 
the  partnership  property  and  effects,  he  must  account  for  the  profits, 
but  I  deny  its  application  to  this  case.  The  complainant's  bill  and 
all  the  positions  he  has  heretofore  taken  have  treated  this  as  a  conti- 
nuing and  undissolved  concern ;  we  are  now  called  on  to  account  for 
the  profits  of  a  closed  concern,  carried  on  by  ug  since  the  dissolution, 
with  the  joint  stock.  And  what  proof  is  there  that  it  was  carried  on 
by  Reybold  with  the  joint  stock,  or  even  with  the  funds  of  Reybold 
and  Dodd?  There  was  no  stock  in  trade,  and  the  principle  does  not 
apply  to  a  balance  due  from  one  partner  to  another  arising  from  pro- 
fits made  by  the  concern. 

Fifth.  There  are  several  minor  errors  of  detail  in  the  settlement  of 
the  account.  Interest  on  the  amount  found  due  is  decreed  from  the 
time  of  dissolution,  though  many  debts  were  outstanding  and  not  col- 
lected till  afterwards.  The  chancellor  refused  to  allow  any  compen- 
sation to  Reybold,  though  it  is  in  proof  that  he  was  the  only  acting 
person  and  the  sole  manager  of  the  concern.  We  think  this  a  case 
out  of  the  general  rule.  The  decree  allows  but  $4  50  per  hundred 
for  a  large  lot  of  cattle  charged  in  the  partnership  books  at  $5  50. 
These  books  are  conclusive  on  the  partners.  The  sum  of  $750,  paid 
to  Fitzpatrick  for  his  share  of  the  profits  of  the  concern  was  impro- 
perly disallowed.  The  chancellor  refused  to  deduct  from  the  sum 
due  to  Dodd  a  bond  from  him  to  Reybold,  Clement  and  Gordon. 
N'ow,  though  this  would  be  no  set-off  at  law,  equity  will  look  beyond 
the  form  of  the  security  and  ascertain  Reybold's  interest  in  this  joint 
bond  and  set  it  oif  against  Dodd's  claim.  This  court  will  inquire 
into  the  whole  circumstances,  without  being  bound  down  by  the 
forms  of  security.  There  is  also  something  due  from  Dodd  to  Rey- 
bold on  his  individual  accoimt  in  the  beef  concern,  and  also  on  a 
bread  account,  which  was  a  separate  concern. 

If,  however,  the  court  should  be  of  opinion  that  this  decree  ought 
to  be  reversed  for  any  of  the  errors  in  principle,  the  cause  must  be 
returned  to  chancery,  where  these  details  can  be  corrected. 

Mr.  Bayard  and  Mr.  Wales,  for  Dodd's  administrators.  First, 
as  to  ReA'hold's  appeal.  The  chief  questions  are,  whether  the  refer- 
ence to  Mr.  Brobson  was  erroneous,  and  if  erroneous,  should  it  re- 
verse the  decree;  second,  whether  the  chancellor  erred  in  treating 
Dodd  as  an  equal  partner. 


408  Reybold  vs.  Dodd's  adm'e. 

As  a  general  rule,  judicial  power  cannot  be  delegated.  Neither 
can  legislative  power.  Delegatus  non  potest  delegare.  Yet  the 
legislature  had  the  power  to  appoint  Mr.  Hall  to  prepare  and  report 
bills  for  them,  which,  if  they  adopted,  aye,  even  without  reading, 
became  laws.  If  we  are  asked  whether  a  legislator  who  thus  acts 
does  his  duty,  we  answer,  no;  but  this  does  not  affect  the  question  of 
power.  The  court  are  not  to  decide  whether  the  chancellor  acted 
prudently  in  consulting  Mr.  Brobson  as  to  the  facts;  he  has  made  a 
decision,  and  whether  influenced  by  the  opinions,  or  aided  by  the 
researches  and  reports  of  others,  is  of  no  importance  as  to  the  validi- 
ty of  the  decision.  We  do  not  discuss  the  question  whether  the 
reference  to  Brobson  involved  discretion,  the  exercise  of  judgment, 
or  the  formation  of  opinions ;  his  acts  and  his  opinions  were  reported 
to  the  chancellor,  and  by  him  adopted  or  rejected,  according  to  his 
judgment.  The  judgment  in  the  case  is  the  judgment  of  the  chancel- 
lor, and,  as  such,  valid.  We  admit  that  if  error  can  be  shown  in  the 
account  as  adopted  by  the  chancellor,  it  may  be  corrected;  but  it  is 
not  faulty  in  itself  because  founded  on  the  master's  report.  The 
chancellor  might  consult  the  opinion  of  any  lawyer  on  a  given  ques- 
tion or  in  a  given  ease,  and  decree  upon  that  opinion,  and  no  court 
would  reverse  the  decree,  if  it  was  right  in  itself,  because  founded  on 
the  opinion  of  another.  A  remarkable  instance  of  the  kind  lately 
occurred  in  England.  Lord  Chancellor  Brougham  had  been  of  coun- 
sel in  a  cause  which  afterwards  came  before  him  as  chancellor.  He 
got  Lord  Lyndhurst  to  hear  the  cause  and  draw  up  an  opinion,  which 
he  adopted  and  decreed  on.  Masters  in  chancery  are  not  judicial 
officers,  either  in  England  or  here.  They  are  not  impeachable. 
They  are  regarded  merely  as  the  ministerial  agents  of  the  court  to 
facilitate  the  business.  The  officer  may  exist  without  the  office. 
There  is  no  such  office  in  New  York,  yet  masters  extraordinary  or 
special  are  often  appointed.  The  court  has  inherently  the  power  to 
employ  such  agents.  It  has  been  the  practice  in  the  English  courts 
from  time  immemorial,  and  our  statute  directs  that  our  practice  shall 
conform  as  near  as  may  be  to  those  courts,  and  such  was  the  practice 
there  at  the  formation  of  our  constitution.  It  was  also  objected  by 
Mr.  Frame  that  this  authority  was  vitiated  by  the  mode  of  its  exer- 
cise ;  and  we  admit  his  rule,  that  a  master  cannot  re-examine  witnesses 
without  an  order;  but  what  is  the  consequence?  The  depositions 
taken  without  such  order  may  be  suppressed,  if  excepted  to.  No 
exceptions  have  been  filed.  But  it  is  in  truth  of  no  consequence  in 
this  cause  whether  these  depositions  be  suppressed  or  not.  We  can 
sustain  the  report  and  decree,  so  far  as  we  are  concerned,  without 
them.  An  order  directing  an  account  to  be  taken  by  a  master  is  not 
such  a  decree  as  is  the  subject  of  an  appeal.  It  does  not  decide  any 
matter  in  issue  between  the  parties,  nor  otherwise  conclude  any  of 
their  rights ;  and  it  is  only  from  such  a  decree  or  order  that  an  appeal 
will  lie.  But  if  this  reference  to  Mr.  Brobson  was  irregular,  and  the 
decree  should  be  reversed  on  that  ground,  what  will  be  the  conse- 
quence? This  court  must  make  such  decree  as  the  chancellor  ought 
to  have  made ;  it  will  take  up  the  cause  at  that  point  and  make  a  final 
decree  on  the  testimony.  Throwing  out  the  master's  report  as  such, 
we  will  then  take  it  up  and  use  it  as  a  mere  statement  which  we  can 


Beybold  vs.  Dodd's  adm'r.  409 

substantiate  by  the  proof ;  and  if  we  can,  the  decree  here  must  be  the 
same. 

Second.  Was  there  error  in  treating  Dodd  as  an  equal  partner? 
Peacock  vs.  Peacock,  (2  Camp.  45)  has  been  relied  on.  It  is  not 
law.  It  is  a  nisi  prius  decision,  made  hastily,  and  Lord  Ellenbo- 
rough  would  never  decide  so  on  reflection.  It  is  against  all  the  au- 
thorities. The  contract  of  partnership  is  one  of  mutual  arrangement ; 
if  no  stipulations  be  made  as  to  interest,  or  none  be  proved,  the  law 
implies  that  they  are  equals.  The  principle  is,  that  partners  take  by 
moieties.  Gow  on  Partnership,  9,  10;  16  Vezey,  49,  54,  5.  Lord 
Eldon's  remarks  on  2  Camp. 

The  cross  appeal  of  Dodd's  administrator.  We  insist  that  the  de- 
cree is  erroneous,  and  must  be  varied :  First,  because  in  directing  an 
issue  to  try  the  time  when  the  partnership  was  dissolved  the  chan- 
cellor impugned  the  interlocutory  decree  of  the  7th  July,  1828. 
This  depends  on  the  construction  of  that  decree.  To  what  did  it 
oxtend?  The  principle  we  assume  is,  that  an  interlocutory  decree 
decides  every  thing  that  is  necessary  to  be  decided  in  order  to  make 
such  decree.  An  account  of  partnership  transactions  was  here 
sought;  the  partnership  was  denied;  if  not  proved  no  decree  to  ac- 
count, as  between  partners,  could  have  been  made,  nor  could  it  right- 
fully extend  beyond  the  time  such  partnership  existed.  If  Eeybold 
was  not  decided  to  be  a  partner  of  Dodd  up  to  the  time  the  accounts 
were  directed  to  be  carried,  why  direct  them  to  that  time?  A  part- 
nership being  proved,  it  continues  until  its  dissolution  be  shown;  if 
there  was  no  evidence  before  the  chancellor  on  that  subject,  he  nec- 
essarily decided  its  continuance  to  the  time  of  ordering  the  account. 
Neither  answer  nor  proof  set  up  a  dissolution;  and  if  the  answer 
omitted  to  put  this  matter  in  issue  it  was  admitted.  The  decree  then 
did  decide  both  the  existence  and  the  continuance  of  the  partnership, 
^nd  there  was  no  lawful  mode  of  altering  this  decree,  but  by  petition 
for  rehearing,  bill  of  review,  or  appeal.  The  deft,  chose  the  last, 
and  is  now  concluded  forever.  For  though  the  decision  on  appeal 
simply  affirms  the  decree  below,  it  gives  it  this  new  property,  never 
thereafter  to  be  reversable  by  any  court  of  inferior  jurisdiction.  The 
power  of  rehearing  was  destroyed;  the  fact  was  concluded.  And 
this  is  true  not  only  of  the  case,  but  of  the  principle ;  the  court  itself 
was  bound  forever  by  it.  4  Simons'  R.;  15  Vezey,  Jr.  223.  An 
account  ordered  to  be  taken  of  the  profits  of  all  voyages  made  by  a 
certain  vessel.  It  appeared  from  plff.'s  own  bill  that  he  was  not  en- 
titled to  a  share  of  the  profits  of  the  seventh  voyage.  The  chancel- 
lor would  not  allow  exceptions  to  the  charge  of  that  voyage,  but 
ordered  the  case  to  stand  over  for  rehearing  to  correct  the  decree. 
And  a  rehearing  is  only  on  petition.  2  Mad.  484.  Issue  refused 
as  too  late  on  appeal.  The  issue  in  this  case  was  after  appeal.  And 
it  was  after  a  refusal  of  the  same  motion.  1  Johns.  Ch.  R.  Hoffman 
ys.  Livingston.  And  the  chancellor  could  not  do  on  his  own  motion 
what  he  could  not  do  at  the  request  of  either  party.  The  proper 
exercise  of  his  discretion  is  examinable  here.  4  Russel,  247 ;  1  Johns. 
Ch.  Rep.  211;  2  Mad.  484;  1  Har.  Chy.  454;  1  Johns,  cases,  436, 
496;    2   Mad.  508,  578-9,  454,    463-4,  482-3;    11    Vezey,    602;    15 


410  Reybold  vs.  Dodd's  adm'r. 

Vezey,  219;  1  Har.  438.  Are  we  seriously  told  that  the  general 
reservation  of  equity  in  this  cause  enable  the  chancellor  to  go  back 
beyond  the  interlocutory  decree.  That  a  power  reserved  to  make 
further  and  final  decrees  prevents  the  operation  and  effect  of  past  de- 
crees? That  a  right  to  go  on  with  a  cause  includes  the  right  to  go 
back?  No  such  effect  was  ever  given  to  a  general  reservation  for 
further  directions;  it  is  always  appended  to  an  interlocutory  decree. 
There  may  be  a  special  equity  reserved,  or  a  special  exception  from 
the  operation  of  a  decree ;  but  this  must  be  specially  done  on  the  face 
of  the  decree.  As  if  in  this  case  the  chancellor  had  decreed  the  ac- 
count without  prejudice  as  to  further  enquiry  into  the  period  of  con- 
tinuance and  time  of  dissolution  of  the  partnership.  The  form  of  the 
issue  is  wrong,  and  this  is  matter  of  error.  4  Russel,  247.  The  issue 
in  this  case  should  have  been  to  try  the  fact  which  was  alledged  to 
have  produced  the  dissolution ;  as  if  by  its  own  limitation,  agreement 
and  notice ;  bankruptcy,  or  such  other  matter  as  was  alledged  to  have 
produced  the  dissolution.  The  supposed  dissolution  must  have  de- 
pended on  some  one  among  the  different  modes  of  breaking  up  a 
partnership,  and  this  one  should  have  been  selected.  The  dissolu- 
tion of  a  partnership  is  a  conclusion  of  law;  the  fact  from  which  it 
was  alledged  to  arise  should  have  been  tried  on  the  issue.  If  the  issue 
was  wrong,  the  decree  must  be  varied,  and  Reybold  charged  with  the 
profits  down  to  the  seventh  July,  1828.  And  afterwards,  as  we 
insist,  because  he  continued  the  business  on  the  joint  funds.  17  Vez, 
298,  307-8 ;  15  Vezey,  218,  222. 

The  specification  of  errors  in  the  account  made  by  Mr.  Frame. 
First.  We  are  entitled  to  interest  on  principles  of  equity.  Second, 
Reybold  not  entitled  to  separate  compensation  for  his  services.  This 
is  not  the  case  of  a  company  appointing  one  of  its  members  an  agent. 
Third.  The  partnership  books  are  proved  to  have  been  falsely  kept 
as  it  regards  Dodd,  and  the  chancellor  properly  corrected  the  charge 
made  for  Reybold's  own  beeves  by  the  testimony.  Fourth.  Fitzpa- 
trick  was  not  a  partner  with  Reybold  and  Dodd ;  at  least,  never  with 
Dodd's  consent.  The  disallowance  of  $750  paid  him  was  therefore 
right.  A  partner  may  give  to  a  third  person  an  interest  in  his  share ; 
but  he  cannot  make  him  a  joint  partner.  Fifth.  The  bond  of  Rey- 
bold, Clement  and  Gordon,  is  no  matter  of  dispute  here.  The  deft, 
by  his  answer  never  sought  to  set  it  off  against  Dodd's  claim,  and  the 
court  cannot  now  consider  it.  We  have  had  no  opportunity  to  contro- 
vert it.  It  is  not  the  case  of  a  bond  due  from  one  partner  to  a  firm 
which  may  be  always  set  off  against  that  partner's  share ;  but  this  is  a 
debt  alledged  to  be  due  from  Dodd  to  Reybold,  Clement  and  Gordon, 
who  are  strangers.  Neither  the  amount  due  upon  it  nor  the  interest 
which  Reybold  has  in  it  can  be  inquired  of  now.  Sixth.  There  is 
nothing  due  on  the  beef  or  bread  accounts,  and  the  same  objection 
applies  to  the  latter,  that  it  is  a  separate  transaction  with  Reybold 
and  others,  not  brought  forward  as  a  set-off  by  the  answer,  and  there- 
fore not  inquirable  into. 

Mr.  Rogers,  in  reply,  for  Reybold.  Chancery  has  the  power,  un- 
der the  general  practice  and  our  act  of  assembly  to  send  an  issue  at 
any  stage  of  the  cause.  It  was  done  by  the  late  Chancellor  Ridgely, 
in  Dick  vs.  Donghton,  at  a  very  late    stage   of   the    cause;    and   in 


Eeybold  vs.  Dodd's  adm'r,  411 

Jeans  vs.  Kinsey,  after  the  cause  was  set  down  for  trial  an  issue 
was  asked  and  granted.  The  fact  of  dissolution  was  the  proper  issue 
to  be  tried.  Either  party  could  at  any  time  have  put  an  end  to  this 
partnership.  Whether  such  dissolution  took  place  was  a  question 
for  a  jury,  and  they  might  infer  notice  from  circumstances.  15  Vez. 
jr.  55,  56;  17  do.  308-9;  19  Johnson,  538;  11  Serg.  &  Rawle,  46. 
The  fact  that  Reybold  commenced  a  partnership  in  the  butchering 
business  at  the  same  place,  and  that  Dodd  traded  with  them  and 
bought  beef  of  them,  which  is  proved,  was  a  reasonable  ground  to 
induce  the  chancellor  to  doubt  a  longer  continuance  of  their  partner- 
ship, and  was  matter  to  be  left  to  a  jury.  Did  the  sending  the  issue 
violate  the  previous  interlocutory  decree?  These  decrees  have  never 
been  considered  in  our  practice  as  deciding  any  thing  finally,  or  put- 
ting it  out  of  the  power  of  the  chancellor  still  to  look  into  the  whole 
cause.  It  was  not  necessary  at  the  time  this  decree  was  made  to  de- 
termine the  time  of  dissolution;  any  partnership  entitled  the  com- 
plainant to  a  decree  to  account ;  and  there  was  a  propriety  in  bringing 
the  account  down  to  the  time  of  ordering  it,  even  though  the  disso- 
lution was  earlier.  The  debts  and  effects  of  the  concern  went  over 
to  Eeybold,  and  were  to  be  accounted  for,  and  might  have  been  pro- 
perly carried  into  an  account,  at  a  period  far  beyond  its  termination. 
In  CrashaiD  vs.  Collins,  2  Russel,  330,  the  chancellor  treats  an 
interlocutory  decree  as  deciding  nothing.  So  17  Vezey,  313-14;  2 
Atk.  298  (286)  ;  2  Mad.  476,  456,  as  to  the  equity  reserved.  The 
English  rules  of  practice  on  the  subject  of  rehearing  are  founded  on 
a  system  of  getting  fees,  and  the  same  formalities  are  not  rigidly  ob- 
served in  our  practice.  Many  things  are  here  done  on  motion  that 
are  there  required  to  be  done  on  petition ;  and  I  do  not  hesitate  to  lay 
it  down  as  a^  general  rule,  that  any  thing  in  the  progress  of  a  cause 
may  be  done,  according  to  our  practice,  by  motion  of  the  party,  or 
by  the  chancellor  of  his  own  motion,  which  can  be  done  in  the  Eng- 
lish courts  by  petition.  But  this  is  not  important,  as  I  do  not  consi- 
der the  decree  as  violated  by  the  issue. 

Is  Eeybold  to  be  held  accountable  for  profits  subsequent  to  the  dis- 
solution on  the  ground  of  having  continued  the  business?  I  do  not 
dispute  the  general  principle,  but  here  was  not  a  subsequent  trading 
on  the  joint  capital.  No  case  can  be  produced  where  one  partner 
furnishes  all  the  capital,  and  all  the  skill,  and  all  the  attention,  (which 
is  this  case)  in  which  after  a  dissolution  the  subsequent  profits  have 
been  decreed  to  be  accounted  for.  The  principle  applies  only  to  cases 
where  the  joint  capital  and  joint  stock  are  left  in  the  business  and 
traded  on  by  one  of  the  partners. 

The  reference  to  the  master.  It  is  hardly  denied  here  that  judi- 
cial power  has  been  delegated  to  Mr.  Brobson.  It  is  now  for  this 
court  for  the  first  time  to  decide  whether  all  the  English  doctrine 
and  machinery  of  masters  in  chancery,  with  all  its  evils  shall  be  in- 
troduced into  our  practice.  But  if  we  are  to  have  the  system  with 
its  evils,  let  us  also  liave  its  checks  and  benefits.  A  master  in  Eng- 
land is  a  known,  established  and  responsible  person  —  an  officer ;  hol- 
ding an  office;  sitting  on  the  bench  with  the  chancellor  and  vice- 
(ihancellor.  There  are  twelve  of  them  in  England,  of  whom  the 
inaster  of  the  rolls  is  the  chief.     Such  an  officer  may  be  in  some  de- 


412  Reybold  vs.  Dodd's  adm'r. 

gree  a  safe  repository  of  judicial  power;  a  very  different  thing  from 
the  casual  appointment  of  any  one,  or  no  one,  as  a  master  here. 
Our  constitution  provides  us  with  judges,  and  I  can  recognize  the 
judicial  character  of  none  other,  especially  such  as  shall  be  so  vary- 
ing and  irresponsible  as  these  masters  in  chancery.  If  the  chancel- 
lor can  delegate  his  authority  to  the  extent  he  has  done  it  in  this  case 
there  is  no  assigning  any  limits.  There  was  but  little  in  the  cause 
that  Mr.  Brobson  could  not  decide;  and  his  report  was  taken  not  as 
the  ex-official  statement  of  a  clerk,  but  as  the  report  of  a  master  giv- 
ing conclusions  and  not  merely  premises.  He  decided  that  Rey- 
bold was  answerable  for  all  the  debts  due  the  concern  if  by  due  dili- 
gence he  might  have  collected  them;  now  was  this  a  principle  or  a 
fact  ?  and  if  a  principle,  was  it  for  him  or  for  the  chancellor  to  estab- 
lish it  in  reference  to  this  case. 

Compensation  to  Reybold  for  his  services.  I  insist  that  the  prin- 
ciple may  be  collected  from  the  books,  that  where  a  party  furnishes  the 
capital  and  is  the  sole  acting  partner,  there  does  arise  an  equitable 
claim  to  compensation.  It  may  also  be  collected  from  the  bill  and 
answer  in  this  case  that  such  was  the  understanding  of  the  parties. 
Dodd  speaking  of  the  compensation  claimed  by  Reybold  does  not 
deny  the  propriety  of  the  claim  but  only  that  the  charge  was  too  high. 

Curia  advisare  vult. 

Harrington,  J.  delivered  the  opinion  of  the  court. 

"  The  bill  was  filed  in  this  case  on  the  6  July  1826,  for  an  account 
of  a  partnership  concern  between  the  complainant,  Job  S.  Dodd  and 
Philip  Reybold  in  the  business  of  buying  and  butchering  cattle, 
sheep  and  other  stock  for  sale.  It  alledged  the  formation  of  the  part- 
nership in  September  1824,  and  prayed  a  discovery  and  account  of 
all  the  cattle,  sheep  and  other  stock  bought  and  butchered  by  the 
deft,  since  that  time;  and  of  the  meat,  hides,  tallow  and  other  arti- 
cles sold  by  him;  and  a  full  account  of  all  the  partnership  dealings 
and  transactions  from  the  time  of  the  commencement  thereof;  and 
that  proper  directions  might  be  given  for  the  conduct  and  manage- 
ment of  the  said  joint-partnership  business  in  future  for  the  joint  and 
equal  benefit  of  the  complainant  and  respondent. 

The  answer  of  the  deft,  positively  denied  the  existence  of  the  part- 
nership; or  that  any  contract  of  partnership  between  him  and  the 
complainant  had  ever  been  formed  or  entered  into. 

On  the  hearing  of  the  clause  the  chancellor  decreed  (on  the  7  July 
1828)  that  Reybold  should  account  with  Dodd  "  for  all  the  property, 
effects,  rights  and  credits  of  the  said  concern,  and  of  all  the  profits 
made  by  or  on  account  or  in  behalf  of  the  said  concern,  and  of  all 
transactions  since  the  commencement  of  the  same  as  afsd."  and  that 
he  should  on  or  before  the  15th  of  October  next  "  file  an  account  of 
all  the  business  and  transactions  of  the  said  concern  of  Philip  Rey- 
bold and  Job  S.  Dodd,  from  its  establishment  up  to  the  7th  day  of 
this  present  month  of  July" — and  should  exhibit  the  true  balance 
due  to  the  said  complainant  from  the  said  concern." 

An  appeal  was  taken  from  this  decree;  and,  on  hearing  in  the 
High  Court  of  Errors  and  Appeals,  at  the  June  term,  1829,  th6  de- 
cree was  in  all  things  affirmed. 


I 


Keybold  vs.  Dodd's  adm'r.  41^ 

It  is  contended  on  the  part  of  complainant  that  this  decree  of  the 
chancellor  as  affirmed  in  the  court  of  appeals  was  conclusive,  both  as 
to  the  existence  of  the  partnership  and  its  duration:  and  consequent- 
ly, that  the  issue  afterwards  sent  by  the  chancellor  to  a  court  of  law 
to  try  if  the  partnership  had  been  dissolved,  and  when,  was  irregular. 

It  cannot  be  denied  that  an  interlocutory  decree  to  account  is  de- 
cisive of  something.  Though  it  has  been  considered  by  the  deft's. 
counsel  as  of  very  little  binding  importance  as  to  the  final  result  of 
the  cause,  it  must  nevertheless  be  admitted  that  as  a  judgment  of  the 
court  upon  some  matter  arising  in  the  cause,  it  is  decisive  of  that 
matter  unless  reversed  by  a  superior  jurisdiction  or  reviewed  and 
changed  by  the  chancellor  himself.  Whether  it  is  competent  to  htm 
to  change  or  vary  such  an  interlocutory  decree  without  the  formality 
of.  a  re-hearing  it  is  not  important  here  to  inquire,  because  the  com- 
plainant in  this  cause  sought  relief  from  this  decree  before  another 
tribunal  whose  judgment  upon  it  was  conclusive.  After  affirmance 
iu  the  court  of  appeals  the  interlocutory  decree,  whether  conclusive 
on  the  chancellor  before,  or  subject  to  his  revision  either  on  the 
general  hearing  of  the  cause  or  on  a  special  petition  to  re-hear  the 
niatter  adjugded,  was  certainly  conclusive  and  binding  on  him. 

The  important  inquiry  therefore  is,  what  was  decided  by  this  in- 
terlocutory decree  ?  It  decided  whatever  was  directly  in  issue  between 
i;he  parties;  whatever  was  necessary  to  be  decided  at  that  stage  of 
the  cause.  Here  was  a  controversy  about  a  partnership; — a  bill 
ailed  for  an  account  of  partnership  transactions,  and  for  payment  of 
"he  complainant's  share  of  profits.  The  suit  embraced  many  and 
mtricate  questions  growing  out  of  the  details  of  the  partnership,  but 
Arhich  it  was  not  necessary  to  look  into  until  the  fact  of  the  existence 
of  a  partnership  had  been  established.  It  was  denied  in  the  answer 
ihat  any  contract  of  partnership  had  ever  been  entered  into  between 
the  parties.  They  were  at  issue  on  this  point,  and  this  was  the  mat- 
ier  to  be  settled  by  an  interlocutory  decree.  And  this  was  all  that 
was  necessarily  embraced  in  such  a  decree.  The  complainant  was 
not  entitled  to  an  account  until  he  established  the  fact  of  a  partner- 
thip;  and  any  contract  of  partnership  being  established  a  decree  to 
account  must  follow  whatever  may  have  been  its  terms,  duration  or 
result.  It  was  no  more  necessary  at  this  stage  of  the  cause  to  deter- 
mine its  duration  than  to  establish  its  terms,  or  results  or  any  other 
details  belonging  to  the  general  consideration  of  the  cause.  Nor 
could  the  parties  be  supposed  to  be  at  issue  on  a  question  of  dura- 
tion of  partnership  when  its  existence  was  denied  and  was  the  mat- 
ter directly  in  issue.  On  this  issue  the  chancellor  decreed  an  account 
of  the  partnership  transactions;  thereby  establishing  that  a  partner- 
ship had  been  entered  into  as  alledged  by  the  complainant  and  denied 
by  the  deft,  but  leaving  all  questions  growing  out  of  the  account 
as  well  as  all  other  matters  not  necessarily  embraced  in  that  de- 
cree, open  for  further  and  final  decree.  He  directed  that  the  ac- 
count should  commence  with  the  origin  of  the  partnership  and  be 
brought  down  to  the  day  of  making  that  decree;  giving  the  widest 
possible  range  to  the  deft.'s  accountability,  but,  as  we  apprehend,  no 
more  fixing  the  extent  of  that  liability  by  determining  the  duration 
of  the  partnership,  than  by  fixing  its  terms.    At  that  time  he  could 


414  Keybold  vs.  Dodd's  adm'e. 

know  nothing  about  either.  He  had  been  trying  whether  any  part- 
nership had  been  formed  between  the  parties ;  he  decided  that  it  had. 
The  partnership  being  thus  established,  prima  facie  it  was  still  in  ex- 
istence; and,  prima  facie  also,  it  was  one  of  equal  interests  and  equal 
liabilities.  It  was  therefore  proper  to  direct  the  accounts,  to  be 
brought  down  to  the  date  of  the  decree,  subject  however  to  be  mo- 
dified either  as  to  the  extent  of  the  partnership  or  the  interest  of  the 
partners,  as  the  subsequent  proof  in  the  cause  should  make  it  neces- 
sary. 

We  are  therefore  of  the  opinion  that  the  issue  directed  by  the  chan- 
cellor on  the  5th  of  April,  1832,  to  try  "  whether  or  not  the  partner- 
ship in  the  business  of  slaughtering  cattle,  sheep  and  hogs  between 
the  said  Job  S.  Dodd  and  the  said  Philip  Keybold  has  been  dissolved ; 
and,  if  dissolved,  when  was  the  said  partnership  dissolved  ? "  did 
not  impugn  the  interlocutory  decree  of  the  7  July,  1828,  and  was 
a  legal  and  proper  exercise  of  his  power;  and  we  are  further  of  opi- 
nion that  the  form  of  the  issue  in  this  case  is  not  objectionable  as  it 
submits  to  the  jury  the  fact  of  the  dissolution  of  partnership  and  the 
period  of  that  dissolution  which  were  matters  proper  to  be  tried  by 
a  jury. 

We  are  next  to  inquire  whether  the  chancellor  erred  in  treating 
Keybold  and  Dodd  as  equal  partners,  and  decreeing  that  the  deft, 
should  pay  to  the  complt.  one  half  of  the  profits  of  the  concern  with 
interest  from  the  period  of  its  termination.  We  have  already  ex- 
pressed the  opinion  that  the  interlocutory  decree  of  the  7th  July, 
1828,  directing  Keybold  to  account  did  establish  the  existence  of 
a  partnership;  and,  in  the  absence  of  proof  to  the  contrary,  a 
partnership  of  equal  interests.  If  a  partnership  exist  without  ex- 
press agreement  regulating  its  terms,  or  none  such  be  proved,  it  is 
governed  by  the  contract  which  the  law  implies  from  the  relation  of 
the  parties.  The  law  implies  that  they  are  equally  interested  in  the 
joint  concern;  and  with  respect  to  profits,  that  they  are  entitled  to 
an  equal  division  unless  the  contrary  be  made  to  appear.  (Oow.  on 
partnership  10.)  It  is  true  the  case  of  Peacock  and  Peacock,  (Camb. 
45 )  is  different ;  but  that  was  a  nisi  prius  decision  and  has  been  over- 
ruled. In  this  case  there  is  no  proof  whatever  in  relation  to  the  in- 
terest of  the  partners ;  nor  was  the  equality  of  interest  denied  in  any 
stage  of  the  cause  previous  to  the  argument  on  appeal.  The  chancel- 
lor therefore  rightly  treated  the  complt.  and  deft,  as  equal  partners 
and  decreed  a  division  of  profits  accordingly.  If  the  complainant 
was  entitled  to  one  half  the  profits  at  the  dissolution  of  the  concern 
he  was  also  entitled  to  interest  for  its  detention  from  such  time  as  it 
ought  to  have  been  paid  over.  The  chancellor  has  taken  the  period 
of  dissolution;  and,  as  the  evidence  shows  it  was  a  cash  business, 
or  business  transacted  on  a  very  short  credit,  with  prompt  payments 
at  stated  periods,  a  division  of  profits  might  have  been  made  at  the 
close  of  the  concern.  And  we  regard  the  rate  of  interest  as  a  better 
rule  of  compensation  for  the  use  of  complainant's  capital  after  the 
dissolution  than  a  subsequent  division  of  profits.  It  is  true  that  in 
certain  cases  where  a  trade  or  business  is  continued  after  dissolution 
with  the  joint  stock  and  on  the  joint  capital,  the  court  has  decree  a 
division  of  subsequent  profits.     In  this  case  the  capital  was  created 


I 


Keybold  vs.  Dodd's  adm'e.  41& 

in  the  course  of  the  business ;  the  deft,  originally  advanced  the  whole 
capital  on  which  the  chancellor  has  allowed  him  interest  until,  accor- 
ding to  the  testimony,  it  was  realized  by  the  profits ;  on  the  dissolution 
of  the  partnership  therefore,  though  the  deft,  did  continue  the  same 
business  on  his  separate  account,  it  was  not  upon  the  joint  stock  or 
capital  any  further  than  that  he  may  have  had  the  use  of  so  much 
money  as  he  was  indebted  to  the  complainant  as  his  share  of  the  pro- 
fits of  their  late  partnership.  Stock  in  trade  there  was  none,  further 
than  this,  and  we  are  of  opinion  that  the  complainant  is  not  entitled, 
on  the  authority  of  the  cases  referred  to,  to  treat  this  partnership  as 
subsisting  and  being  carried  on  by  Keybold  after  its  dissolution  for 
the  equal  benefit  of  them  both  merely  because  his  share  of  the  profits 
was  not  promptly  paid  over.  We  think  the  more  equitable  rule  is 
that  adopted  by  the  chancellor  of  giving  him  interest  for  the  use  of 
his  money  from  the  time  Eeybold  ought  to  have  paid  it. 

It  is  also  objected  against  the  decree  of  the  chancellor  that  he  re- 
fused to  allow  Reybold  any  compensation  for  his  attention  to  the 
business  of  the  concern  though  it  is  in  proof  that  the  whole  was  tran- 
sacted by  him  without  any  interference  or  attention  on  the  part  of 
Dodd.  The  chancellor  has  but  followed  the  rule  of  law  on  this  sub- 
ject :  though  the  management  of  the  business  might  reasonably  entitle 
Mr.  Eeybold  to  compensation,  such  management  is  deemed  to  be 
voluntary,  without  a  special  agreement,  and  gives  no  legal  claim  to 
compensation.  Each  joint  owner  in  managing  a  joint  concern  is 
taking  care  of  his  own  interests,  and  the  law  never  undertakes  to 
settle  between  partners  their  various  and  unequal  services  bestowed  on 
the  joint  business.  This  must  be  left  to  contract  (1  Johns.  Ch'y. 
Rep.  165.  Franklin  vs.  Robinson.)  In  the  case  of  joint  partners 
the  general  rule  is,  that  one  is  not  entitled  to  charge  against  another 
a  compensation  for  his  more  valuable  or  unequal  services  bestowed 
on  the  common  concern  without  a  special  agreement.  (3  Johns.  Ch'y. 
Rep.  434.  Bradford  vs.  Kimherly,  and  the  cases  there  cited.)  It 
is  true  that  where  the  other  partners  constitute  one  the  agent  of  the 
whole  to  transact  the  whole  business  he  is  entitled  to  compensation, 
either  stipulated  or  on  a  quantum  meruit;  but  this  is  on  the  ground 
of  contract.  Without  express  agreement  for  compensation  to  a  joint 
owner  or  partner,  or  the  positive  employment  of  one  of  the  partners 
by  the  others  for  the  transaction  of  the  concerns  of  the  whole  and  as 
the  agent  of  the  whole,  no  compensation  can  be  allowed  on  the  au- 
thority of  adjudged  cases.  In  this  case  there  does  not  exist  any 
proof  of  such  contract  for  compensation,  nor  of  the  employment  of 
Mr.  Reybold  as  the  agent  of  the  concern  for  the  transaction  of  the 
whole  business;  and  though  it  may  have  been  conducted  chiefly  or 
entirely  under  his  supervision  and  care,  the  attention  thus  bestowed 
was  voluntary  on  his  part  and  given  to  the  concern.  For  the  use  of 
liis  buildings,  slaughter  houses,  pastures,  &c.  and  for  actual  expenses 
incurred  by  him  in  managing  and  conducting  the  affairs  of  the  part- 
nership allowance  has  been  made. 

We  have  yet  to  consider  what  we  regard  as  the  most  important 
<|uestion  in  this  cause.  On  this  question  the  court  is  divided,  and 
the  opinion  now  to  be  expressed  is  that  of  a  majority  of  the  court 
<'nlv. 


416  Keybold  vs.  Dodd's  adm'b. 

"  The  fourth  exception  or  cause  of  appeal  in  this  cause  assigns  as 
matter  of  error  in  the  decree."  That  it  appears  that  the  said  decree 
was  based  on  the  report  made  in  this  cause  by  a  certain  William  P. 
Brobson,  esquire,  whereas  the  defendant  does  insist  that  judicial 
power  cannot  be  delegated  but  by  express  law,  and  that  the  most 
important  rights  and  privileges  of  the  deft,  in  the  cause  were  by 
order  of  the  chancellor  examined  and  adjudicated  out  of  court  by  the 
said  William  P.  Brobson,  esquire.  It  is  at  once  seen  that  this  excep- 
tion involves  a  very  important  question,  and  that  is,  whether  the 
chancellor  has  the  power  to  appoint  a  person  by  the  name  of  a  mas- 
ter in  chancery,  auditor  or  referee  to  state  an  account  and  to  take 
depositions  in  support  of  the  account  which  may  be  so  stated.  It  is 
admitted  that  no  such  power  has  been  delegated  to  him  by  any  statute 
law  of  this  state,  although  the  legislature  has  deemed  it  proper  to 
confer  upon  him  full  power  to  hear  and  decree  all  such  matters  and 
causes  of  equity  as  shall  come  before  him,  where  the  proceedings 
shall  be  as  heretofore,  by  bill  and  answer;  and  with  power  to  issue 
forth  all  manner  of  subpoenas  and  all  other  process  as  may  be  need- 
ful to  oblige  and  force  def ts,  to  answer  suits ;  and  also  to  award  com- 
missions for  taking  answers  and  examining  witnesses,  and  to  grant 
injunctions  for  staying  suits  at  law  and  stopping  wastes,  as  there  may 
be  occasion;  with  power  to  make  orders  and  do  all  other  things  ne- 
cessary for  bringing  causes  to  hearing ;  and  that  when  matters  of  fact 
shall  happen  to  arise  upon  the  examination  or  hearing  of  the  matters 
and  causes  to  be  heard  and  determined  in  the  said  court,  then  and  in 
every  such  case  to  order  the  matter  of  fact  to  issue  and  trial  at  law 
before  decree.  As  there  is  no  such  power  to  be  found  in  our  acts  of 
assembly  then  can  it  be  sustained  by  the  ancient  practice  of  the  court 
of  chancery  in  England,  adopted  there  previous  to  the  settlement  of 
this  country,  or  by  any  uniform  and  settled  practice  in  this  state. 
In  England  there  are  what  are  called  masters  in  chancery.  They  are 
in  number  twelve  including  the  master  of  the  rolls,  all  of  whom  so 
late  as  the  reign  of  queen  Elizabeth  were  commonly  doctors  of 
the  civil  law ;  and  Blackstone  3  vol.  442  calls  them  "  officers  of  the 
court."  And  it  is  said  that  some  sit  in  court  every  day  during  term, 
and  have  referred  to  them  interlocutory  orders  for  stating  accounts, 
computing  damages  and  the  like,  and  they  also  administer  oaths, 
take  affidavits  and  acknowledgments  of  deeds  and  recognizances. 
They  are  appointed  by  the  lord  chancellor  and  hold  their  office  for 
life,  and  they  have  a  fixed  salary  paid  them  from  the  public  treasury. 
Ko  stress  can  be  laid  on  their  being  appointed  by  the  lord  chancel- 
lor, for  he  has  the  appointment  of  various  other  officers  unconnected 
with  this  court.  Here  no  such  power  is  given  to  the  chancellor,  ei- 
ther by  the  constitution  or  by  statute.  It  cannot  have  been  derived 
from  practice  for  it  is  believed  not  to  have  been  before  exercised  ex- 
cept by  the  consent  of  the  parties  to  the  suit.  During  the  long  period 
in  which  chancellors  Killen  and  Ridgely  performed  the  duties  of  that 
office  it  does  not  appear  that  either  of  them  ever  made  such  an  ap- 
pointment. It  is  true  that  the  record  in  one  case  does  not  show  that 
the  consent  of  the  parties  was  obtained,  but  the  recollection  of  the 
counsel  in  that  case  is  that  the  parties  expresslv  consented  to  the  ap- 
pointment.    Whether  the  chancellor  has   such   a  power  or  not  is 


Eeybold  vs.  Dodd's  adm'r.  417 

highly  important  to  suitors.  The  policy  of  the  state  has  been  to  ad- 
minister justice  at  its  own  expense,  by  persons  appointed  by  the 
state,  and  acting  under  the  sanction  of  an  oath  and  amenable  to  the 
state  for  corruption  and  mal  practices;  whereas  if  it  be  permitted  the 
chancellor  to  appoint  a  master  ad  litem  the  whole  expense  necessa- 
rily  falls  upon  the  parties  to  the  suit;  you  have  not  the  security  of 
an  oath,  nor  is  he  responsible  to  any  one  for  misconduct.  Should 
the  business  of  the  court  of  chancery  become  too  laborious  for  one 
man  to  perform,  the  remedy  is  plain; — authorize  by  law  the  appoint- 
ment of  a  master  in  each  county  who  shall  act  in  all  cases  coming 
within  his  province;  let  him  receive  a  salary  from  the  state,  and  be 
bound  by  an  oath  to  discharge  the  duties  of  his  office  with  fidelity, 
and  be  liable  to  indictment,  or  impeachment  for  misbehavior.  Had 
the  chancellor  attempted  to  appoint  a  master  for  each  county  and 
with  all  the  powers  incident  to  the  office  every  one  would  have  been 
startled  at  this  stretch  of  power,  and  no  one  would  have  hesitated 
to  deny  it  to  him.  If  he  cannot  do  this,  and  no  one  is  hardy 
enough  to  say  he  can,  whence  does  he  derive  the  power  to  appoint 
one  ad  litem?  Xot  by  the  constitution,  nor  by  any  statute,  nor  by 
long  established  usage.  It  would  be  better,  infinitely  better,  that  he 
should  have  the  general  power  of  appointing  an  officer  to  act  in  all 
cases,  than  that  he  should  have  the  power  of  appointing  him  in  the 
particular  suit;  for  in  the  latter  instance,  if  he  were  a  corrupt  man, 
he  might  appoint  one  to  do  the  work  of  which  he  might  be  ashamed. 
If  the  chancellor  can  rightfully  appoint  a  master,  he  must  necessa- 
rily have  all  the  powers  incident  to  the  office.  It  seemed  to  be  the 
opinion  of  the  counsel  for  the  deft,  in  this  appeal,  that  the  powers  of 
a  master  were  very  limited ;  that  it  was  a  mere  ministerial  office,  and 
that  he  could  not  decide  any  question  of  law.  Newldnd,  in  his 
Chancery  Practice,  enumerates  many  of  the  various  functions  of  a 
master.  He  says,  pp.  6  and  7 — "It  would  be  impossible  to  specify 
every  head  of  reference,  because  they  are  almost  as  numerolis  as  the 
matters  subject  to  the  jurisdiction  of  the  court;  but  the  following  is  a 
statement  of  such  as  usually  occur:  To  examine  into  any  alledged 
impertinence  or  scandal  in  any  bill  or  answer,  or  into  the  sufficiency 
of  any  answer  or  examination;  to  examine  into  the  regularity  of  pro- 
ceedings had  in  court;  into  all  alledged  contempts  of  the  court;  to 
settle  interrogatories  for  the  examination  of  the  parties;  to  take  the 
accounts  of  executors,  administrators,  trustees  and  guardians,  and  be- 
tween parties  of  every  description;  to  inquire  into  and  decide  upon 
claims  of  creditors  and  legatees  and  next  of  in;  to  appoint  receivers 
of  personal  estates  and  of  the  rents  of  real  estates,  fix  their  salaries, 
and  examine  their  accounts;  to  inquire  as  to  repairs  to  be  done,  and 
into  the  propriety  of  felling  timber  and  granting  leases;  to  sell  es- 
tates, and  to  approve  of  the  investment  of  trust  money  in  the  purchase 
of  es;tates,  and  for  this  purpose  to  inquire  into  their  value,  to  investi- 
gate the  title  to  them,  and  to  settle  the  conveyances ;  to  inquire  for  the 
heirs  and  next  of  kin  of  persons  dying  intestate ;  to  appoint  committees 
of  the  persons  and  estates  of  lunatics,  and  to  examine  the  accounts  of 
such  committees.  And  in  general  there  is  no  question  of  law  or 
equity,  or  disputed  fact,  which  a  master  may  not  have  occasion 
to  decide,  or  respecting  which  he  may  not  he  called  upon  to  report 


418  Reybold  vs.  Dodd's  adm'b. 

his  opinion  to  the  court."  If  the  chancellor  can  appoint  a  master, 
and  refer  one  of  these  matters  to  him  for  decision,  what  is  to  prevent 
him  from  referring  all  or  any  of  them?  Do  the  necessities  of  the 
state  require  that  the  chancellor  should  be  authorized  to  delegate  so 
many  of  his  powers?  It  is  a  maxim,  that  judicial  powers  cannot  be 
■delegated  unless  by  express  warrant  of  law;  and  we  would  ask, 
where  is  this  express  "^arrant?  We  find  it  neither  in  the  constitution 
nor  statutes  of  the  state,  nor  is  it  even  warranted  by  the  practice  and 
Tusages  of  the  court.  The  reason  assigned  in  2  Vez,  388  why  mat- 
ters of  account  and  other  matters  are  referred  to  a  master  is  this — 
"  that  whenever  an  account  is  to  be  taken,  the  court,  by  its  ancient 
constitution,  is  to  be  aided  in  taking  it  by  some  proper  officer,  (as 
masters  now  are,)  because  it  is  impossible  to  take  accounts  originally, 
as  that  would  so  take  up  the  time  of  the  court  that  justice  could 
not  be  administered  in  any  other  causes."  Surely  our  court  of  chan- 
cery has  not  this  latter  excuse  for  delegating  its  authority  to  a  mas- 
ter.    The  terms  rarely  exceed  a  week,  and  are  held  but  twice  a  year. 

It  was  said  at  the  bar,  that  if  the  chancellor  had  not  the  general 
power  of  appointing  a  master,  yet  in  any  special  case  of  intricacy  he 
might  refer  the  matters  to  an  auditor,  with  authority  to  take  the  ac- 
count between  the  parties.  The  chancellor  has  in  this  case  expressly 
designated  him  master;  but  we  are  willing  to  overlook  that,  and  con- 
sider whether  he  can  appoint  an  auditor  without  the  consent  of  the 
parties.  It  is  laid  down  in  Cases  in  Chancery  86,  that  such  a  refer- 
ence cannot  be  made  but  by  the  express  consent  of  all  the  parties; 
and  that  even  the  solicitor  cannot  bind  his  client  by  such  a  reference ; 
the  client  himself  must  consent;  nor  is  it  sufficient  that  the  party 
attends  on  such  reference  unless  he  does  actually  consent.  (76,  87. 
See  also  2  Com.  Dig.  315.)  It  is  said  in  2  Atk.  144,  "that  the 
house  of  lords  very  often  in  matters  of  account  which  are  extremely 
perplexed  and  intricate,  refer  it  to  two  merchants  named  hy  the 
parties,  to  consider  the  case  and  report  their  opinions  upon  it." 

A  majority  of  the  court  is  therefore  of  opinion  that  there  was  error 
in  the  appointment  of  Mr.  Brobson  as  a  master  in  chancery  in  this 
cause,  and  the  reference  made  to  him  under  such  appointment,  and 
that  the  decree  founded  on  his  report  is  consequently  erroneous,  and 
must  be  reversed.  I  take  the  liberty — perhaps  it  is  my  duty — to  state 
with  deference  that  my  own  views  of  the  subject  do  not  accord  with 
this  opinion. 

I  readily  assent  to  the  proposition  that  judicial  power  cannot  be 
-delegated  without  express  warrant  of  law.  It  was  the  province  of 
the  chancellor,  and  of  the  chancellor  only,  to  adjudge  and  decide  ev- 
ery matter  in  controversy  between  these  parties ;  and  it  was  not  com- 
petent to  him  to  transfer  this  power  or  devolve  this  duty  upon  an- 
other. But  in  the  exercise  of  this  power  may  he  not  employ  others  in 
the  collection  of  facts,  in  the  statement  of  accounts,  or  otherwise,  so 
as  to  enlighten  his  judgment  or  facilitate  the  decision  of  the  cause? 
He  is  authorized  by  law  "to  make  all  such  rules  and  orders  as  may  be 
necessary  for  the  better  regulating  the  practice  of  the  court,"  "and  all 
other  regulations  necessary  for  the  bringing  forward  and  expediting 
the  hearing  of  causes,"  &c.    The  statement  of  partnership  accounts 


Eeybold  vs.  Dodd's  adm'r,  419 

may  be  and  frequently  is  a  matter  of  great  labor,  requiring  investi- 
gation and  time  which  a  chancellor  may  not  have  it  in  his  power, 
consistently  with  his  other  public  duties,  to  bestow  upon  it;  and 
yet  to  a  proper  decision  of  the  cause  such  an  investigation  may  be 
necessary.  Shall  he  not  avail  himself  of  the  assistance  of  others  in 
obtaining  the  very  materials  for  his  own  judgment?  And  is  not 
an  order  directing  a  clerk  to  state  accounts  and  report  results  in  such 
a  case  authorized  by  the  act  of  assembly  as  "necessary  for  the  bring- 
ing forward  and  expediting  the  hearing  of  causes?"  Every  such 
reference  must  to  a  certain  extent  involve  the  judgment  of  the  ref- 
eree; and  what  if  it  does,  so  that  he  reports  to  the  chancellor  the 
grounds  upon  which  that  judgment  is  formed.  If  the  chancellor  on. 
such  report  agrees  with  him  in  opinion,  he  adopts  his  conclusions  and 
makes  them  his  own.  I  admit  that  the  practice  of  thus  employing 
the  aid  of  others  in  the  investigation  of  causes  is  liable  to  abuse;  it  is 
a  power  that  ought  to  be  used  sparingly  and  with  great  discretion; 
but  the  power  may  be  necessary  for  expediting  the  hearing  of  causes, 
and  is  in  my  opinion  given  by  the  act  of  assembly,  if  not  inherent 
in  the  court.  Let  us  see  to  what  extent  the  aid  of  Mr.  Brobson  was 
employed  on  this  occasion.  Eeybold  had  been  directed  to  account 
with  the  complainant  for  all  the  transactions  of  the  partnership.  He 
had  filed  sundry  accounts,  which  were  excepted  to,  and  he  was 
directed  to  file  other  accounts,  which  were  also  excepted  to.  Depo- 
sitions were  taken  and  in  part  read,  when  the  chancellor,  finding  it 
impossible  for  him  to  go  into  a  detailed  investigation  of  the  accounts, 
made  an  order,  on  the  9th  of  March,  1831,  that  the  accounts  and  ex- 
ceptions, together  with  the  depositions,  should  be  referred  to  Wil- 
liam P.  Brobson,  "to  take  and  state,  settle  and  adjust  an  account 
between  the  parties,  complainant  and  defendant,  touching  and  con- 
cerning the  concerns  and  business  of  the  partnership  heretofore  sub- 
sisting between  them;"  setting  forth  a  particular  account  of  all  the 
partnership  transactions,  engagements,  debts  and  property,  and  of 
all  profits;  a  specific  account  of  all  cattle,  &c.  bought,  and  of  the 
prices;  and  of  all  beef,  &c.  sold;  showing  the  profits  of  the  concern, 
and  the  balance  due  complainant.  And  that  either  party  should  be 
at  liberty  to  except  to  the  said  account,  and  to  prove  any  matter  in 
relation  thereto  by  depositions  taken  in  the  usual  form. 

This  order  left  the  whole  subject  still  under  the  control  of  the 
chancellor,  subject  to  his  revision  and  final  decision.  The  referee, 
or  master,  as  he  has  been  called,  reported  the  account  taken  by  him 
with  remarks  explanatory  of  the  principles  he  had  adopted  in  stating 
it,  and  references  to  the  testimony  in  support  of  the  several  items  of 
charge  or  credit.  Exceptions  on  both  sides  were  filed,  the  whole 
subject  again  examined  by  the  chancellor,  with  all  the  aid  he  could 
derive  from  the  master's  report,  and  he  finally  adopted,  varied  or 
rejected  that  report  as  in  his  own  judgment  he  considered  just  and 
equitable.  The  decision  was  that  of  the  chancellor; — influenced,  it 
may  be,  we  cannot  tell  to  what  extent  nor  how  properly,  by  the  report 
of  the  master;  but  still  the  decision  of  the  chancellor  and  not  of  a 
delegated  agent.  It  is  not  the  case  of  a  delegation  of  judicial  power; 
nor,  in  my  judgment,  of  the  delegation  of  any  authority  which  the 
law  does  not  authorize  the  chancellor  to  devolve  on  another  in  aid  of 
his  own  judicial  functions. 


420  Reybold  vs.  Dodd's  adm'r. 

The  practice  of  the  several  chancellors  in  this  state  of  employing 
the  aid  of  others  in  stating  accounts,  &c.  so  far  as  there  has  been  any 
such  practice,  is  supposed  not  to  aid  the  argument  in  favor  of  their 
authority  to  do  so,  because  such  practice  is  said  to  have  been  exer- 
cised only  with  the  consent  of  parties.  No  case  has  before  occurred 
where  it  has  been  necessary  to  decide  upon  the  power  of  the  chan- 
cellor of  his  own  motion  to  make  such  a  reference.  For  though  the 
appointment  of  a  master  was  one  of  the  errors  assigned  to  the  decree 
of  the  chancellor  in  the  case  of  Ridgeway  and  Newhold  vs.  New- 
hold,  (ante  ZS5)  the  point  was  not  insisted  on  in  the  argument  on  ap- 
peal and  did  not  enter  into  the  final  consideration  of  the  case.  That 
case,  moreover,  is  a  very  recent  one,  and  could  not  establish  any 
thing  like  a  practice;  and,  according  to  the  recollection  of  those  who 
have  the  best  as  well  as  the  most  extensive  knowledge  of  the  practice, 
it  is  believed  to  have  rested  on  the  consent  of  parties.  Either  by 
consent  or  otherwise  the  records  of  the  court  of  chancery,  show  that 
such  a  power  has  frequently  been  exercised,  never  objected  to  until 
the  case  of  Ridgeway  and  Newbold,  nor  controverted  until  the  pre- 
sent case.  In  the  case  of  Dick  vs.  Bought  en,  which  was  a  bill  for 
dower  and  arrears  of  dower,  (ante  p.  3S8)  after  a  reference  made 
by  the  consent  of  parties  to  three  persons  to  ascertain  the  value  of  the 
arrears  of  dower,  and  after  their  report  was  set  aside  and  the  refer- 
ence stricken  out,  when  the  cause  came  on  to  be  heard,  the  chan- 
cellor, (Ridgely,)  "  after  considering  the  same,"  made  a  decree  that 
it  be  referred  to  James  R.  Black,  Esq.  who  for  that  purpose  was 
appointed  a  master  in  chancery,  to  take  an  account  of  the  rents  and 
estimate  the  annual  value  of  the  third  part  of  said  rents.  I  have 
already  remarked  in  reference  to  this  case,  while  delivering  the  opin- 
ion of  the  majority  on  this  point,  that  it  was  a  reference  by  consent 
according  to  the  recollection  of  the  counsel,  and  I  may  add,  of  the 
master  also;  but  I  cannot  see  how  the  consent  of  parties  could  give 
the  chancellor  power  to  appoint  a  master,  as  he  did  in  express 
terms;  and  if  he  regarded  this  as  a  mere  reference  by  the  parties 
themselves,  it  is  strange  that  a  judge  of  his  known  caution  should 
have  used  language  that  at  least  implies  the  power  of  appointment 
without  expressly  founding  that  power  on  consent.  The  same  case 
presented  an  instance  of  a  reference  by  consent  of  parties,  and  shows 
a  marked  difference  in  language  between  that  and  the  chancellor's 
decree  appointing  a  master.  And  it  is  further  to  be  remarked  in  that 
case,  that  the  deft,  was  ordered  to  produce  before  Mr.  Black,  on 
oath,  all  deeds  and  other  writings  in  his  power  relating  to  the  matters 
in  question;  and  authority  was  given  to  the  master  to  examine  wit- 
nesses, and  his  report  was  finally  adopted  and  confirmed  by  the  chan- 
cellor." 

Decree. — And  now  to  wit,  &c.  It  is  ordered,  adjudged  and  de- 
creed by  the  court  here  that  the  order  or  decree  of  Ihe  chancellor, 
made  in  this  cause  in  the  court  below,  on  the  9th  day  of  March,  A.  D. 
1831,  whereby  the  chancellor  referred  the  said  cause,  accounts,  excep- 
tions and  depositions  to  the  said  William  P.  Brobson,  together  with 
the  report  of  the  said  William  P.  Brobson,  and  the  examinations, 
depositions,  proofs  and  accounts  made,  had  or  taken  by  or  before  the 


Carlisle  vs.  Fleming  et  al.  421 

said  William  P.  Brobson,  under  and  in  pursuance  of  the  said  order  or 
<lecree,  shall  be  and  the  same  is  hereby  reversed,  annulled  and  held  for 
nothing;  and  it  is  further  ordered,  adjudged  and  decreed  by  the  court 
here,  that  the  decree  of  the  chancellor,  made  in  this  cause  on  the  15th 
of  September,  1832,  and  also  the  final  decree  of  the  chancellor,  made 
in  this  cause;  and  also  all  and  every  the  orders  and  decrees  made  by 
the  chancellor  in  this  cause  since  the  said  loth  day  of  September,  in 
the  year  last  aforesaid,  be  and  the  same  are  hereby  in  all  things  re- 
versed, annulled  and  held  for  nothing;  and  it  is  further  ordered,  ad- 
judged and  decreed  by  the  court  here,  that  this  cause  and  the  record 
be  remanded  to  the  chancellor,  to  be  proceeded  in  and  heard  before 
him  upon  the  accounts,  exceptions,  verdict  in  the  said  feigned  issue, 
and  proofs  taken  and  field  in  this  cause,  save  and  except  nevertheless 
that  the  said  report,  accounts,  proofs  and  acts  of  the  said  William  P. 
Erobson,  or  which  were  taken  by  or  before  him,  the  said  William  P. 
Brobson  as  afsd.,  under  the  afsd.  order  of  the  chancellor,  referring 
the  said  cause  to  him  as  afsd.  shall  not  be  regarded  and  considered  by 
the  chancellor,  but  the  same  shall  be  taken  and  held  for  nothing;  and 
it  is  further  ordered  and  decreed  by  the  court  here,  that  the  respon- 
dent pay  costs,  &c. 

Gray,  Bayard  and  Wales,  for  Dodd's  administrator. 

Frame  and  Rogers,  for  Keybold. 


DAVID  CAELISLE  and  JAMES  McDOWELL,  Jr.  and  HANNAH, 
his  wife,  late  HANNAH  HAEPEE,  complainants  below,  appel- 
lants, vs.  THOMAS  FLEMING  and  HANNAH  his  wife,  late 
HANNAH  CAELISLE,  MAEY  CAELISLE,  JOHN  C.  HUT- 
TON  and  MAEY  his  wife  late  MAEY  HAEPEE,  ANN  HAE- 
PEE and  JOHN  W.  THOMAS,  adm'r.  of  SAMUEL  CAE- 
LISLE, dec'd.  respondents. 

The  ground  on  which  equity  compels  a  specific  performance  of  a  parol  agree- 
ment concerning  lands  is  the  prevention  of  fraud. 

When  part  performance  is  relied  on  as  taking  a  case  out  of  the  statute,  the 
acts  must  be  unequivocally  in  execution  of  the  agreemept. 

And  the  terms  of  the  agreement  must  be  clearly  proved. 

On  a  promise  by  a  father  to  one  of  his  sons  that  if  he,  the  son,  would  continue 
with  him,  he  would  leave  him  the  farm  at  his  death,  the  court  refused  to 
decree  a  specific  execution  against  the  heirs  at  law  on  the  ground  of  an 
agreement  performed  by  the  son. 

Appeal  from  the  decree  of  the  chancellor.     New-Castle  County. 

The  case,  as  presented  by  the  complainant's  bill,  was:  That  about 
the  year  1811  the  complainant,  David  Carlisle,  resided  with  his  father 
Samuel  Carlisle,  on  a  farm  lying  partly  in  this  state  and  partly  in 
Pennsylvania,  containing  about  190  acres,  and  of  which  the  said 
Samuel  Carlisle  was  the  legal  owner  in  fee;  that  the  said  David  Car- 
lisle being  of  full  age  was  desirous  to  establish  himself  as  a  farmer 
on  his  own  account,  but  the  father,  being  a  person  of  small  means, 
and  wishing  his  assistance  in  the  cultivation  of  his  farm  represented 
that  it  would  be  more  advisable  for  him  to  remain  and  devote  himself 
to  the  improvement  of  it ;  "promising  that  in  case  he  took  this  course, 
he  should  be  owner  of  it,  after  the  death  of  him  the  said  Samuel, 
and  that  he  would  make  his  will  to  that  effect.     And.  that  confiding 


422  Cabusle  vs.  Fleming  et  al. 

in  this  promise,  he  David  consented  to  remain,  and  from  that  time 
up  to  the  year  1820  he  and  his  father  resided  in  the  same  house,  and 
he  devoted  his  whole  time,  labor  and  exertions  to  the  cultivation  of 
the  farm  and  that  duHng  that  period  he  received  no  other  emolument 
than  his  support  and  clothing,  looking  forward  to  the  performance 
of  the  promise  of  his  father,  which  he  frequently  repeated,  during 
the  time  he  lived  with  him.  That  at  the  beginning  of  1814,  he 
married  and  the  property  he  received  by  his  wife,  of  the  value  of 
about  one  hundred  and  fifty  dollars  was  applied  to  his  father's  benefit, 
and  the  services  of  his  wife  rendered  without  any  emolument,  other 
than  her  support.  That  his  father  becoming  less  disposed  to  pay  any 
attention  to  business,  in  April,  1820,  removed  to  a  small  house  on 
the  farm,  and  at  the  time  of  his  (David's)  so  taking  charge  en- 
tirely of  the  farm,  it  was  in  a  very  unimproved  condition,  and  a 
large  portion  of  the  land  a  common.  But  induced  by  the  under- 
standing of  an  arrangement  existing  between  him  and  his  father,  that 
the  farm  should  be  devised  to  him;  he  went  on  to  improve  it,  and  at 
the  deatJi  of  his  father  he  had  brought  it  into  a  hight  state  of  cultiva- 
tion and  more  than  doubled  in  value.  That  among  the  improve- 
ments, he  mentions  a  number  of  buildings,  and  the  burning  and 
spreading  over  the  farm  eight  kilns  of  lime  beside  other  manure. 
That  he  fenced  in  all  the  farm  lying  as  a  common  and  paid  the  taxes 
assessed  upon  it,  and  that  all  was  done  by  him,  and  by  means  ac- 
quired by  him,  and  without  any  assistance  from  his  father.  That  dur- 
ing all  this  time  his  father  and  family  derived  their  support  from 
him  except  for  about  six  years,  and  that  he  (David)  supplied  his 
father  with  money  to  pay  of  his  debts,  to  an  amount  not  less  than  2500 
dollars,  and  that  his  father  had  no  other  means  or  property,  but  that 
which  was  supplied  by  said  David.  The  bill  then  proceeded  to  state, 
that  his  father  intending  to  fulfil  and  comply  with  the  promises  made 
by  him,  and  with  the  understanding  and  arrangement  between  them 
caused  his  last  will  and  testament  to  be  written  on  or  about  the  first 
of  December,  1830,  and  that  thereby  subject  to  certain  charges  and 
exceptions,  devised  all  his  real  estate  to  David;  that  the  said  Samuel 
Carlisle  signed  the  same,  but  it  was  not  executed  in  the  presence  of 
any  attesting  witnesses,  admitting  that  it  is  void  and  of  no  effect  in 
this  state  as  a  will,  but  that  Samuel  Carlisle  believing  the  same  to  be 
good  and  suflBcient  to  vest  in  the  persons  to  whom  he  had  devised  his 
property  their  several  interes+s  as  therein  written,  took  no  further 
step  in  order  to  give  effect  to  the  agreement  between  him  and  David, 
and  died  on  or  about  the  first  day  of  January,  1832,  without  making 
any  other  will,  with  the  belief  that  the  writing  he  had  signed  as  his 
will  was  good  and  sufficient  as  a  last  will  and  testament.  There  was 
no  prayer  in  the  will  for  a  specific  execution  of  the  alledged 
agreement  by  means  of  any  conveyance  of  the  farm,  but  the 
prayer  was  for  an  account,  and  that  the  farm  may  be  sold  for 
payment  of  the  balance  which  may  appear  to  be  due,  and  for 
general  relief.  The  defendants  having  an  interest  in  the  farm, 
admitted  the  seisin  and  possession  thereof,  in  1811,  of  Samuel 
Carlisle,  and  that  he  continued  upon  it  until  his  death,  but  they  pre- 
cisely and  positively  deny  that  he  made  the  promises  to  David 
as  set  forth  in  the  bill.     They  say  that  David,  after  he  became  of 


Caklislb  vs,  Fleming  et  al.  423 

age,  continued  with  his  father,  and  was  maintained  by  him  until  his 
marriage  in  1814,  and  that  after  his  marriage,  he  and  his  family,  con- 
tinued to  live  with  his  father  until  1820,  but  deny  that  he  was  en- 
titled to  receive  any  thing  for  his  and  his  wife's  services,  other  than 
what  he  received  by  way  of  support  from  his  father,  and  deny  that  the 
property  received  by  David  with  his  wife  was  ever  applied  to  his 
father's  benefit.  They  say  that  about  1814,  Samuel  Carlisle  sold  to 
Thomas  Fleming,  one  of  the  defendants,  and  his  son-in-law^  40  acres 
of  land  or  thereabouts,  part  of  the  said  farm,  and  that  Fleming  pro- 
ceeded to  build  on  the  same  a  dwelling  house  but  before  it  was 
completed,  the  agreement  was  rescinded,  and  the  expenditures  there- 
for repaid,  and  that  the  said  building  was  finished  by  Joseph  Harper, 
another  son-in-law  of  the  old  man,  and  that  the  said  Harper  with  his 
family  occupied  the  same  from  1815  until  1820,  when  Samuel  Car- 
lisle removed  to  this  house  with  his  family;  David  and  his  family 
continuing  in  the  house  in  which  the  two  families  had  been  living. 
That  from  that  time,  till  the  death  of  the  old  man,  David  tilled  the 
farm  (except  about  6  or  8  acres,)  and  took  to  himself  the  profits  of 
the  same.  The  answer  then  enumerates  a  variety  of  articles  of  per- 
sonal property  which  remained  with  David,  and  which  amounted  in 
value  to  about  2000  dollars,  and  they  deny  that  David  went  on  to 
improve  the  farm  under  the  understanding  and  arrangement  set  forth 
in  the  bill.  They  say  that  the  buildings  were  made  of  materials  be- 
longing to  his  father,  and  that  whatever  lime  was  spread,  was  of  lime 
stone  from  the  old  man's  quarry,  hauled  by  his  own  teams,  and 
burnt  in  his  own  kiln  with  his  own  wood  and  principally  by  his 
negroes.  They  deny  that  David  paid  the  taxes,  and  say  that  what- 
ever he  did  was  only  as  a  tenant,  in  which  relation  they  say  he  stood 
as  to  said  farm  with  Samuel  Carlisle.  They  deny  that  David  sup- 
plied his  father  with  money  to  pay  of  Ids  debts  —  that  he  was  desti- 
tute of  means  or  property  to  pay  them,  or  to  support  himself  and 
family; — do  not  believe  he  was  indebted  exceeding  400  dollars  at 
any  one  time  previous  to  building  his  barn  in  1820,  and  since  then, 
not  exceeding  500  dollars.  Eeferring  to  the  instrument  signed  as  a 
will,  they  aver  their  belief  that  fraud  and  concealment  have  been 
practised  by  David  and  a  confederate  whom  they  name.  They  state 
that  the  old  man  made  and  executed  divers  wills,  and  some  of  them 
in  the  presence  of  subscribing  witnesses;  and  that  he  thereby  made 
different  dispositions  of  his  estate.  They  insist  that  the  complainants 
are  not  entitled  to  any  relief  in  chancery,  and  that  a  court  of  law  is 
open  to  David  Carlisle  against  the  administrator,  and  that  the  whole 
is  barred  by  the  act  of  limitations,  the  benefit  of  which  they  claim. 

On  the  hearing  of  the  cause  below  the  chancellor  dismissed  the 
complainant's  bill  with  costs,  whereupon,  an  appeal  was  prayed  and 
granted. 

The  cause  was  by  consent  argued  in  this  court  in  writing  by  Mr. 
J.  A.  Bayard  for  the  appellant  and  Mr.  Eogers  for  the  respondents. 

The  complainants  insisted  that  the  decree  of  the  chancellor  should 
be  reversed  and  one  of  two  kinds  of  equitable  relief  granted  to  him: 
First.  That  the  will  of  Samuel  Carlisle,  though  void  as  a  mere  will 
ought  to  be  established  against  the  defts.  as  an  instrument  wMch  the 


424  Carlisle  vs.  Fleming  et  al, 

agreement  of  Samuel  Carlisle  with  David,  founded  on  a  valuable  con- 
sideration and  performed  on  David's  part,  bound  him  to  execute. 
Second.  That  in  case  the  court  should  consider  the  agreement  not 
sufficiently  definite  to  call  for  a  decree  establishing  the  will  David 
Carlisle  was  entitled  to  remuneration  for  his  services  and  sacrifices 
in  the  performance  of  his  part  of  the  said  agreement  with  his  father 
and  to  a  decree  for  an  account. 

The  first  ground,  it  was  argued,  presents  the  ordinary  case  of  the 
specific  performance  of  an  agreement.  To  call  for  this,  all  that  is 
necessary  to  be  shown,  is,  the  terms  of  the  agreement,  the  considera- 
tion and  the  performance  or  readiness  to  perform  his  part  by  the 
party  seeking  relief,  and  that  either  the  agreement  (if  it  relates  to 
land)  was  in  writing,  or  has  been  performed  in  part.  In  this  case 
there  is  no  written  agreement,  but  an  entire  performance  by  the 
complainant  of  his  part  of  it.  It  is  submitted  that  it  is  proved  that 
Samuel  Carlisle  agreed  with  David  in  consideration  of  David  remain- 
ing with  him  and  assisting  him  in  the  cultivation  of  the  farm  during 
Ws  life  he  would  leave  the  farm  to  him  at  his  death.  Samuel  Car- 
lisle was  competent  to  make  such  an  agreement  and  there  is  nothing 
in  the  relation  of  parent  and  child  to  forbid  it;  on  the  con- 
trary, the  consideration  of  blood  is  a  good  consideration,  and  the 
slightest  valuable  consideration  added  would  call  for  its  enforcement 
in  cases  where  as  between  strangers  the  consideration  would  be  deem- 
ed inadequate  for  the  purpose  of  the  interference  of  a  court  of  equity. 
And  it  can  be  no  objection  that  the  agreement  of  Samuel  Carlisle 
was  to  be  performed  by  a  will.  A  man  may  agree  with  a  stranger 
to  convey  property  by  his  will,  and  if  his  agreement  is  founded  on 
a  valuable  consideration  performed  by  the  other  party,  though  he 
makes  no  will  a  court  of  equity  would  Compel  a  conveyance  of  the 
land  by  his  heirs,  because  being  founded  on  a  valid  agreement  for  a 
valuable  consideration,  the  will  is  no  longer  a  voluntary  act.  The 
case  of  Goilmere,  vs.  Battison,  1  Vernon,  48,  is  conclusive  as  to 
this,  and  far  weaker  either  as  to  the  proof  of  the  agreement  or  the 
extent  of  the  consideration,  than  the  principal  Case.  The  heirs  claim 
always  as  volunteers,  and  subject  to  all  debts  and  valid  agreements 
made  by  the  ancestor,  as  to  the  descended  lands.  In  the  case  cited 
the  agreement  was  decreed  specifically  against  a  husband,  who, 
though  no  purchaser,  stands  as  to  his  marital  rights  on  higher  grounds 
than  mere  heirs.  It  can  make  no  difference  in  such  a  case,  whether 
the  will  is  not  made  from  intention,  from  negligence  or  accident. 
The  ground  of  specific  performance  is,  that  a  party,  having  received 
the  consideration  of  the  agreement,  is  bound  to  perform  his  part  of 
it,  and  the  obligation  extends  to  all  persons  claiming  under  him  as 
volunteers.  How  do  these  principles  of  equity  apply  to  the  present 
case  ?  The  promise  of  Samuel  Carlisle  to  make  a  will  in  favor  of  his 
son,  cannot  be  doubted,  and  his  competency  to  make  that  promise. 
Is  the  consideration  adequate?  and  has  there  been  such  a  part  per- 
formance as  to  supply  the  want  of  a  written  agreement?  As  to  the 
latter  question,  it  is  believed  to  be  established,  that  David  Carlisle 
did  remain  with  his  father  and  assist  him  in  the  cultivation  of  the 
farm,  until  his  death;  that  he  was  the  most  efficient  person  on  the 
farm  until  1820,  and  from  that  time  had  the  entire  charge  of  it;  and 


Carlisle  vs.  Fleming  et  al.  425 

that  he  devoted  his  time  and  labor  and  that  of  his  wife  in  the  culti- 
vation and  improvement  of  the  farm  in  the  support  of  his  father's 
family  and  in  the  payment  of  the  old  man's  debts.  That  is,  there- 
fore, an  entire  performance  by  the  complainant  of  his  part  of  the 
agreement.  Is  not  the  consideration  sufficient?  In  our  country  in 
fact  as  well  as  in  the  eye  of  the  law  the  time  and  labor  of  every 
industrious  man  is  worth  more  than  a  mere  support  of  himself  and 
family;  but  whether  worth  more  or  not,  the  agreement  in  this  case 
estimated  them  as  worth  more,  and  entitled  the  son  for  his  services 
during  the  life  of  the  father  to  the  land  at  his  death.  There  is 
one  authority  as  to  both  the  sufficiency  of  the  consideration  and 
the  right  to  relief  in  equity,  which  appears  to  be  very  applicable. 
Scotis  Ex'r.  vs.  Osborne's  Ex'rs.  2  Munf.  413.  "  A  father-in-law 
having  promised  his  son-in-law  that  if  he  would  purchase  a  certain 
tract  of  land  he  would  assist  him  in  paying  for  it  by  letting  him 
have  the  amount  of  a  particular  bond  when  collected,  and  the  son-in- 
law  having  thereupon  made  the  purchase,  this  was  determined  to  be 
upon  sufficient  consideration  and  obligatory  in  law.  It  was  objected 
in  the  court  below  that  the  coplainant's  remedy  was  at  law,  on 
his  own  showing.  I  cannot  see  the  force  of  the  objection.  In  every 
case  of  specific  'performance  of  an  agreement,  the  party  has  a  right 
of  action  at  law,  but  the  remedy  is  not  sufficiently  ample.  If  we  are 
entitled  to  compel  a  conveyance  of  the  land  by  the  heirs,  on  the  foot 
of  an  agreement  for  valuable  consideration  made  with  the  ancestor, 
that  clearly  is  a  ground  for  coming  into  chancery.  Damages  for  non- 
performance are  not  considered  in  equity  as  sufficient  relief  where 
the  contract  is  capable  of  specific  execution,  especially  where  there 
has  been  an  entire  performance  by  the  party  seeking  relief.  And 
this  objection  comes  too  late;  it  ought  to  have  been  by  demurrer. 
The  objection,  if  valid,  appears  on  the  face  of  the  bill,  and  does  not 
arise  from  any  new  matter.  In  Underhill  vs.  Van  Cortlandt, 
2  Johns.  Ch.  Rep.  369,  it  was  decided  that  when  a  '^  defendant  puts 
in  his  answer  instead  of  a  demurrer,  and  the  cause  comes  on  to  be 
hear  on  the  merits,  it  is  too  late  to  object  to  the  jurisdiction  of  the 
court  on  the  ground  that  the  plaintiff  might  have  pursued  his  remedy 
at  law."  In  reference  to  the  case  as  one  of  specie  performance,  it 
may  be  objected  that  the  bill  does  not  pray  a  conveyance  by  the  heirs 
of  Samuel  Carlisle.  The  objection  is  not  valid.  There  is  a  prayer 
for  general  relief,  and  under  that  prayer  the  complainant  is  not  con- 
fined to  the  particular  relief  prayed  for  in  the  bill,  but  is  entitled  to 
such  a  decree  as  the  circumstances  of  his  case  may  require.  Vide 
Johns.  Rep.  529  Bebee  vs.  Banlc  of  New  York.  If  there  is  any 
doubt  on  the  proof  as  to  the  existence  of  the  agreement,  the  court 
would  send  an  issue  to  law,  to  try  the  question. 

Second.  The  principle  on  which  relief  is  claimed  independent  of  any 
positive  agreement  is,  that  whenever  a  party  by  his  own  voluntary  act 
or  declaration  acquiescence  or  concealment  occasions  a  loss  to  another 
which  he  would  not  otherwise  have  sustained,  he  shall  not  be  per- 
mitted in  equity  to  derive  advantage  from  his  own  default  or  neglect, 
though  no  action  would  lie  at  law  for  damages.  The  principle  seems 
necessarily  included  in  the  word  equity,  and  is  supported  by  the  fol- 

54 


426  Carlisle  vs.  Fleming  et  al. 

lowing  authorities.  2  Vem.  506,  Oldham  vs.  Litchfield;  Prec.  Chy., 
5 ;  Devenish  vs.  Barnes;  Sel.  Cha.  Ca.  5.  9 ;  Teasdale  vs.  Teasdale,  2 
Freeman,  34;  Chamberlain  vs.  Chamberlain;  1  Anst.  185;  Hardcastle 
vs.  Shapton;  2  Fern.  150;  Hunsden  vs.  Cheyney,  1  Fernon,  136; 
Thobhs  vs.  Norton,  &c.  Gil.  E.  Rep.  85;  Kanning  vs.  Ferrers.  On  the 
principle  recognized  in  these  and  numerous  other  cases,  we  conceive 
ourselves  entitled  to  a  decree  for  an  account  in  the  principles  stated 
in  the  prayer  of  the  bill. 

In  the  argument  on  the  part  of  the  defendants,  it  was  insisted  that 
no  agreement  had  been  proved  to  have  been  made  between  Samuel 
and  David  Carlisle  as  set  forth  in  the  bill;  that  nothing  had  been 
proved  more  than  general  declarations  of  intention  or  indefinite  prom- 
ises by  the  old  man,  to  leave  the  farm  to  David;  that  such  promises 
were  voluntary  and  without  consideration ;  that  the  residence  of  David 
with  his  father  was  for  his  own  benefit,  as  he  was  in  the  receipt  of 
all  the  issues  of  a  valuable  farm,  in  return  for  his  own  services  and 
those  of  his  wife,  by  which  he  had  become  largely  a  debtor  to  his 
father's  estate,  and  that  he  so  remained  with  his  father  for  his  own 
present  advantage,  and  relying  on  the  final  voluntary  performance  of 
his  father's  intentions  as  to  his  will.  The  first  species  of  relief  asked 
for  in  the  complainant's  argument,  by  way  of  specific  performance 
of  the  alledged  agreement,  was  resisted;  First,  Because  no  such  case 
was  presented  or  relief  sought  in  the  bill,  nor  was  such  a  ground  of 
relief  presented  to  the  view  of  the  chancellor  at  the  hearing  in  the 
court  below.  Had  such  a  case  been  presented  by  the  bill,  the  course 
of  defence  would  have  been  materially  different.  Had  there  been  a 
prayer  for  specific  performance,  the  defendants  would  have  answered 
that  such  a  matter  was  not  within  the  jurisdiction  of  a  court  of  equity 
as  to  set  up  a  defective  will  in  performance  of  a  supposed  agreement, 
because  the  effect  and  validity  of  the  said  pretended  will  was  a  mat' 
ter  properly  triable  at  law;  or  the  defts'.  might  have  demurred; 
which  they  could  not  do  to  the  general  prayer  of  the  bill.  By  setting 
up  a  claim  for  specific  performance,  at  this  stage  of  the  cause,  the 
def'dts.  are  deprived  of  defence  by  way  of  demurrer,  on  the 
ground  of  want  of  consideration,  which  appears  on  the  face  of  the 
bill,  and  would  have  been  fatal  on  demurrer  to  the  demand  for  speci- 
fic performance.  Again,  the  defts'.  might  have  pleaded  to  such  a 
case,  if  it  had  been  presented  by  the  bill,  the  statute  of  frauds  and 
perjuries;  for  il  is  not  pretended  that  the  agreement  was  any  thing 
more  than  a  parol  agreement  which  is  void  by  the  statute;  nor  is 
there  any  thing  to  take  it  out  of  the  statute,  for  it  is  believed  that  no 
case  can  be  found  in  which  the  specific  execution  of  an  agreement  by 
parol  has  been  decreed  where  the  same  has  not  been  supported  by 
written  testimony  wherein  the  terms  of  the  agreement  are  set  out. 
2  Equity,  Ca.  Ah.  47,  p.  15;  Prec.  Chy.  526;  5  Yin.  Alrig't.  521, 
PI.  32.  And  no  acts  of  part  performance  will  take  a  case  out  of  the 
statute  unless  they  place  the  complainant  in  a  situation  which  is  a 
fraud  upon  him,  unless  the  agreement  be  specifically  executed.  The 
terms  of  the  agreement  as  set  forth  in  the  bill  are  too  indefinite  and 
uncertain;  the  essence  of  a  contract  was  wanting;  there  was  no  o&- 
ligation  on  the  part  of  David  to  remain ;  and  the  testamentary  disposi- 
tion of  his  property  by  the  father  was  voluntary,  the  nature  of  the 


Carlisle  vs.  Fleming  et  al.  427 

services;  the  extent  of  the  improvements;  the  receipt  and  disposition 
of  the  annual  issues  and  proceeds  of  the  farm,  and  the  consideration 
for  the  alledged  promise,  are  all  left  uncertain  and  indefinite.  In 
short,  a  case  of  specific  performance  is  neither  stated  nor  proved,  and 
could  not  have  been  decreed  even  if  prayed  for,  much  less  can  the 
complainant  have  a  decree  for  a  specific  performance  under  a  prayer 
for  general  relief.  Equity  will  not  interpose  to  compel  the  perform- 
ance of  a  voluntary  agreement  entered  into  without  fraud.  1  Atk. 
401;  nor  where  there  exists  a  power  of  revocation,  (18  Vezey  99) 
and  it  is  clear  that  such  a  power  existed  in  Samuel  Carlisle  in  this 
case.  4  Vezey,  Jr.  23;  2  Bro.  Chy.  140;  1  Vezey,  Jr.  199;  12 
Vezey,  69;  8  do  159;  14  do.  386;  19  do  479;  2  Cox.  Ch.  Ca.  271;  2 
Atk.  83. 

Second.  The  second  species  of  relief  asked  for  proceeds  on  the 
principle  that  where  a  man  by  his  conduct  occasions  a  loss  to  an- 
other, he  shall  not  be  permitted  in  equity  to  derive  advantage  from 
his  own  default,  though  no  action  at  law  would  lie  for  damages.  All 
the  cases  cited  are  in  reference  to  personal  estate,  except  that  of 
Devenish  vs.  Barnes  which  turned  upon  the  custom  of  the  country 
by  which  the  estate  could  be  created  by  parol;  and  they  all  proceed 
on  the  principle  of  direct  and  obvious  fraud.  In  this  case  there  is 
neither  allegation  nor  proof  of  fraud;  if  there  ever  existed  any  pro- 
mise on  the  part  of  Samuel  Carlisle  it  was  upon  that,  as  a  mere  en- 
gagement of  honor,  that  David  rested  his  hope  of  obtaining  the  farm 
at  the  old  man's  death;  and  it  is  submitted  that,  nice  as  the  doctrines 
and  principles  of  equity  may  sometimes  be,  a  court  would  be  much 
more  perplexed  by  the  delicate  questions  involved  in  the  analysis  of 
a  merely  honorable  engagement.  Nor,  if  the  promise  had  been  one 
upon  which  a  legal  obligation  could  be  founded,  was  there  any  con- 
sideration to  support  it.  The  services  performed  by  David,  both  in 
kind  and  extent,  depended  on  his  own  will,  and  were  liable  at  all 
times  to  be  withdrawn;  and  they  were  more  than  compensated  by 
the  support  for  himself  and  family  which  he  derived  from  the  farm. 
If  they  were  not,  however,  and  he  still  has  a  demand  on  the  estate 
of  his  father  for  services  rendered,  this  is  not  the  subject  of  a  suit  in 
equity,  but  he  has  ample  remedy  at  law.  And  this  is  a  full  and  flat 
answer  to  this  branch  of  the  case,  whether  made  by  demurrer  or  on 
the  hearing,  if  the  case  turns  out  to  be  one  of  a  mere  legal  demand 
equity  cannot  afford  relief.  Equitable  claims  only  can  invoke  the 
interference  of  equity. 

In  the  argument  in  reply  Mr.  Bayard  insisted  that  it  was  not  ne- 
cessary that  the  relief  by  way  of  specific  performance  should  be  speci- 
ally prayed  for  in  the  bill;  and  he  relied  on  the  case  cited  of  Behee 
vs.  Bank  of  New-York,  and  the  case  of  Hollis  vs.  Carr,  2  Mod. 
91,  where  a  covenant  to  levy  a  fine  was  specifically  decreed  under 
the  general  prayer  for  relief.  A  court  of  equity  abhors  technicali- 
ties; and  the  true  principle  is,  that  if  the  statement  of  the  case  sus- 
tained by  the  proof  entitles  the  party  to  relief  other  than  that  prayed 
for  it  will  be  granted  under  the  general  prayer.  It  is  denied  that  the 
effect  and  validity  of  a  will  is  s  matter  triable  only  at  law ;  the  fact 
of  will  or  no  will,  devisavit  vel  non,  is  triable  only  at  law;  but  the 
construction  of  a  will  or  its  effect  may  be  decided  in  whatever  court 


428  Carlisle  vs.  Fleming  et  al. 

a  question  is  raised  upon  it.  We  here  admit  the  will  to  he  void, 
but  we  say  that,  as  by  his  agreement  Samuel  Carlisle  was  bound  to 
make  a  valid  will,  whether  he  fails  to  do  so  by  accident,  negligence 
or  design,  equity  will  enforce  the  agreement  against  his  heirs  and 
compel  a  conveyance  of  the  land.  The  defendants  were  not  pre- 
vented from  demurring  to  the  case  stated  in  the  bill  if  they  had 
thought  proper  to  do  so,  and  the  idea  of  a  demurrer  to  the  prayer 
for  want  of  equity  is  a  novelty  in  equity  practice.  If  the  bill  dis- 
closes any  ground  of  equitable  relief  a  demurrer  will  not  lie;  the 
extent  and  nature  of  the  relief  are  to  be  determined  at  the  hearing. 
As  to  the  defendants  being  deprived  of  the  plea  of  the  statute  of 
frauds  by  the  general  prayer  of  the  bill,  it  is  perfectly  immaterial  to 
them;  for  where  a  defendant  denies  a  parol  agreement  it  is  incum- 
bent on  the  complainant  to  prove  one  not  within  the  statute,  or  if 
within  it  for  want  of  writing,  that  it  is  taken  out  by  part  perform- 
ance or  fraud.  That  this  is  a  case  so  taken  out  has  been  argued,  first, 
by  the  labor  and  services  of  David  Carlisle  performed  on  his  part, 
which  was  the  consideration  of  the  promise ;  and  secondly ;  if  not 
viewed  as  an  agreement,  that  the  advantage  of  that  labor  was  ob- 
tained by  a  promise  to  a  child  not  performed  and  which  on  the 
ground  of  prevention  of  fraud  ought  to  be.  enforced.  The  case  cited 
from  5th  Viner,  521,  has  no  analogy  to  this  case.  It  Was  the  case 
of  a  naked  parol  agreement  in  no  part  performed.  Here  the  entire 
consideration  was  performed  by  David  Carlisle;  and  we  are  willing 
to  adopt  the  principle  advanced  by  the  other  side,  "that  it  is  only 
where  the  act  of  performance  places  the  complainant  in  a  situation 
which  is  a  fraud  upon  him,  unless  the  agreement  is  executed."  On 
that  principle  we  consider  ourselves  entitled  to  a  decree  for  a  speci- 
fic performance.  The  agreement  is  said  to  have  had  no  obligatory 
force  on  either  of  the  parties.  The  continuance  of  David  was  suffi- 
ciently secured  by  the  fact  that  the  remuneration  of  his  services  de- 
pended upon  it;  and  as  it  regards  the  father,  though  the  making  of 
a  will  is  generally  voluntar}^  it  was  not  so  after  the  agreement  for  a 
valuable  consideration  to  make  it  in  a  particular  way,  it  was  then 
neither  voluntary  nor  revocable,  but  obligatory.  So  far  from  all  the 
cases  cited  by  the  complainant  being  in  reference  to  personal  estate, 
Oldham  vs.  Litchfield,  Teasdale  vs.  Teasdale,  Hardcastle  vs.  Shapton, 
Hobs  vs.  Norton,  and  e  contra  and  Kanning  vs.  Ferrers  are  all  cases 
relating  to  real  estate. 

The  next  position,  stated  with  so  much  confidence,  that  the  claim 
if  good  is  relievable  at  law,  has-been  anticipated  in  the  former  argu- 
ment, and  the  authority,  high  as  it  deservedly  is,  there  cited,  re- 
mains unnoticed;  with  the  presumption,  I  take  it  for  granted,  that 
the  dictum  of  the  defts'.  counsel  is  to  outweigh  the  authority  of 
James  Kent.  I  am  willing  to  abide  the  result.  If  the  case  is  one 
founded  on  an  agreement  of  which  we  are  entitled  to  call  for  a  spe- 
cific performance  the  relief  is  at  equity  alone;  if  it  is  simply  the 
case  of  a  promise  by  Samuel  Carlisle  not  performed,  by  virtue  of 
which  there  arises  counter  claims  on  each  side  as  stated  in  the  bill, 
then  there  is  sufficient  ground  to  ask  an  account  from  a  court  of 
equity. 


Carlisle  vs.  Fleming  et  al.  429 

At  the  June  term,  1835,  Judge-  Robinson  delivered  the  opinion 
of  the  court. 

After  stating  the  case  at  ante  pp.  421,  &c. 

"  It  was  insisted  on  in  the  argument  for  the  appellants  which  was 
drawn  up  with  much  skill  and  ability,  that  the  decree  of  the  chan- 
cellor should  be  reversed  by  this  court,  and  that  one  of  two  kinds  of 
equitable  relief  should  be  granted  to  David  Carlisle,  who  is  the  only 
appellant  claiming  any  interest  in  the  farm  which  is  the  subject  of 
controversy,  as  the  other  appellants  have  conveyed  all  their  interest 
in  it  to  him.  The  first  kind  of  relief  it  is  said,  presents  the  ordinary 
case  of  a  specific  performance  of  an  agreement,  to  wit :  "  that  the 
will  of  Samuel  Carlisle,  though  void  as  a  mere  will,  should  be  esta- 
blished against  the  defts.  as  an  instrument  which  the  agreement  of 
Samuel  Carlisle  with  David,  founded  on  a  valuable  consideration  and 
performed  on  David's  part,  bound  him  to  execute."  The  other  kind 
of  equitable  relief  is  the  same  as  that  prayed  for  in  the  bill,  for  an 
account.  The  first  question  to  be  considered  is,  has  the  agreement 
stated  in  the  bill,  or  any  agreement  been  proved,  against  the  positive 
denial  in  the  answers  of  any  agreement  having  been  made.  Mary 
Carlisle,  the  widow  of  Samuel  Carlisle,  and  a  witness  produced  by 
David,  in  her  answers  to  the  fifth  interrogatory  says,  "  that  when 
David  came  of  age,  he  told  his  father  that  the  farm  was  so  poor  that 
he  must  leave  it,  unless  he  purchased  a  lime  quarry  for  the  purpose 
of  improving  it;  that  his  father,  at  that  time;  and  frequently  after- 
wards, gave  David  to  understand,  that  if  he  would  remain  upon  the 
farm  and  improve  it  with  a  view  to  the  pa}Tnent  of  his  debts,  which 
were  then  heavy,  he  would  leave  him  the  farm  at  his  death,  but  that 
he  would  keep  the  reins  in  his  own  hands  while  he  lived."  And  in 
her  answer  to  the  26th  interrogatory  she  deposes  "  that  Samuel  Car- 
lisle frequently  expressed  his  regret,  that  David  was  obliged  to  work 
so  hard  to  pay  his  debts;  that  he  and  his  wife  had  made  themselves 
slaves  for  him,  and  that  he  wished  to  see  his  debts  all  paid  that  he 
might  leave  his  farm  to  David,  as  he  had  earned  it."  Sarah  Wilson 
another  witness  adduced  for  the  complainants,  deposed  "  that  when 
David  came  of  age  he  was  about  to  go  away;  that  at  that  time,  and 
frequently  afterwards,  she  had  heard  Samuel  Carlisle  tell  David  that 
if  he  would  remain  upon  the  farm  and  improve  it,  that  it  should  be 
his  when  he  died."  These  are  all  the  witnesses  on  whom  the  ap- 
pellant, David  Carlisle,  relies  to  prove  the  agreement.  It  is  proved 
in  other  portions  of  the  testimony  that  David  came  of  age  in  October, 
1809,  so  that  he  had  been  at  work  for  his  father  two  years  before  the 
time  when  he  represents  the  agreement  to  have  taken  place;  whilst 
these  two  principal  witnesses  state  the  first  conversation  on  the  sub- 
ject to  have  taken  place  when  David  came  of  age.  The  bill  in  order 
to  show  an  agreement  states,  that  David  consented  to  remain,  but 
neither  of  these  witnesses  prove  any  such  thing,  or  that  he  agreed 
or  consented  to  do  any  thing.  It  appears  that  the  only  condition 
that  David  imposed,  to  induce  him  to  remain  in  order  to  improve 
the  farm,  was  the  purchase  of  a  lime  quarry,  for  he  introduces  the 
conversation  himself,  according  to  the  testimony  of  his  mother,  by 
telling  his  father  "  that  the  farm  was  so  poor  that  he  must  leave  it, 
unless  he,  (the  old  man)  purchased  a  lime  quarry."    The  frequently 


430  Carlisle  vs.  Fleming  et  al. 

repeated  declarations  of  the  old  man  of  his  giving  David  to  under- 
stand, or  of  his  telling  him  if  he  would  remain  and  improve  the  farm 
that  he  would  leave  it  to  him  at  his  death,  very  much  weaken  the 
probability  of  any  mutual  agreement  having  been  concluded  on. 
Here  then  is  clearly  a  want  of  mutuality,  for  if  the  old  man  fre- 
quently gave  David  to  understand,  or  made  promises,  it  is  not 
proved  that  David  was  imder  any  engagement  to  remain,  or  to  de- 
vote himself  to  the  improvement  of  the  farm  during  his  father's  life- 
time, or  any  time  at  all.  He  could  have  left  the  farm  when  he 
pleased,  without  violating  any  contract.  In  Bromley  vs.  Jeffries, 
2  Vern.  415,  the  case  was  that  Sir  Kowland  Berkley,  on  the  mar- 
riage of  the  plff.  with  one  of  his  daughters,  covenanted  that  if  the 
plfl.  survived  Sir  Kowland  and  had  issue  by  his  daughter,  that  the 
plff.  should  have  a  manor  fifteen  hundred  pounds  less  than  any  other 
purchaser  would  give  for  the  same.  The  court  refused  to  decree  a 
specific  execution  on  two  grounds,  and  one  was,  that  the  agreement 
was  not  mutual,  as  the  plff.  was  not  bound  to  take  it  at  any  price. 
David  Carlisle  was  not  bound  according  to  any  proof  in  the  cause  to 
remain  and  improve  the  farm.  So  in  Cook  vs.  Oxley,  3  Term  Rep. 
652,  it  was  decided  that  as  the  engagement,  at  the  time  it  was  en- 
tered into,  was  all  on  one  side,  it  was  nudum  pactum,  for  want  of 
mutuality.  Then  is  the  instrument  of  writing  of  the  30th  Decem- 
ber, 1830,  sought  to  be  established,  for  a  specific  execution  of  the 
agreement,  such  an  instrument  as  Samuel  Carlisle  was  bound  to  exe- 
cute, or  in  other  words  sufficient  to  take  this  case  out  of  the  act  of 
assembly  which  declares  "  that  no  action  shall  be  brought  to  charge 
any  person  upon  any  contract,  or  sale  of  land,  unless  the  same  shall 
be  reduced  to  writing,  or  some  memorandum  or  note  thereof  shall 
be  signed  by  the  party  to  be  charged  therewith,  or  some  other  per- 
son thereunto  by  him  or  them  lawfully  authorized."  The  grounds 
on  which  courts  of  equity  compel  a  specific  performance  of  a  parol 
agreement  is  that  of  fraud  in  refusing  by  one  party,  after  the  other 
has  performed,  and  in  some  cases  partly  performed,  on  his  part.  But 
in  this  case  no  fraud  has  been  imputed  to  Samuel  Carlisle,  but  on  the 
contrary,  it  is  admitted  that  by  the  instrument  of  writing  referred  to 
he  intended  to  fulfil  his  promise,  and  believed  it  to  be  suflficient  as  a 
will.  In  some  cases  it  has  been  held,  that  relief  ought  not  be  decreed 
on  the  ground  of  fraud,  if  it  is  not  put  in  issue  by  the  pleadings.  6 
Johns.  Rep.  554.  But  the  remedy  sought  to  be  obtained  by  this 
appeal  is  not  so  much  the  ordinary  case  of  a  specific  performance  of 
an  agreement  on  the  ground  of  fraud,  as  to  supply  the  defective  exe- 
cution of  an  instrument  as  a  will,  on  the  ground  of  mistake,  a  mis- 
take as  to  a  legal  formality  in  omitting  to  have  two  or  more  attesting 
witnesses  to  the  execution  of  the  instrument  as  required  by  law  to 
make  it  a  will.  For  it  is  alledged  that  Samuel  Carlisle  believing  it 
to  be  good  and  sufficient  to  vest  in  the  persons  to  whom  he  had  de- 
vised his  property  their  several  interests  as  therein  written,  took  no 
further  step  in  order  to  give  effect  to  the  agreement  as  set  forth  in 
the  bill.  If  the  agreement  had  been  proved,  and  if  the  instrument 
had  contained  in  it  only  such  provisions  as  would  have  satisfied  that 
agreement,  there  is  no  doubt  that  a  court  of  equity  could  afford  re- 
lief by  carrying  into  execution  the  provisions  of  the  instrument.    But 


Caelisle  v9.  Fleming  et  al.  431 

by  the  agreement  as  mentioned  in  the  bill,  David  was  at  the  death 
of  his  father  to  be  entitled  to  the  whole  of  the  farm,  without  any  ex- 
ceptions or  charges,  and  as  a  purchaser  for  a  valuable  consideration, 
wholly  to  be  performed  in  his  father's  life  time.  But  in  this  state- 
ment now  sought  to  be  established  to  fulfil  an  agreement,  Samuel 
Carlisle  had  no  intention  to  comply  with  any  contract  or  legal  obli- 
gation, but  to  make  voluntary  donations  to  all  those  who  from  a 
moral  obligation  only,  he  considered  entitled  to  his  bounty.  Thus 
he  intended  to  devise  portions  of  the  farm  to  his  wife,  his  daughter 
Hannah,  and  to  his  grandson  Samuel  Carlisle.  He  intended  to  give 
to  his  wife  and  her  heirs  a  road  through  any  part  of  his  land,  and  to 
her  and  the  Baptist  church,  fire  wood  to  be  taken  from  the  farm,  and 
David  was  to  pay  sixty  dollars  per  annum  to  his  mother  during  her 
lifetime,  and  five  hundred  and  fifty  dollars  legacies  to  three  children 
of  his  daughter  Nancy  Harper,  two  of  whom  were  not  born  when 
David  came  of  age.  Subject  to  these  provisions  and  others,  he  in- 
tended to  devise  the  farm  to  David  in  fee,  but  failed  in  the  proper 
execution  of  the  instrument  to  make  it  a  will.  There  is  therefore 
such  a  disprepancy  between  the  alledged  agreement  and  the  intended 
will,  that  if  the  former  had  been  proved  the  latter  could  not  with 
propriety  have  been  established  or  taken  to  be  in  performance.  It 
could  not  be  said  to  be  such  an  instrument  as  Samuel  Carlisle  had 
bound  himself  to  execute,  and  therefore  a  court  of  equity  could  not 
f^upplv  its  defective  execution  on  the  ground  of  mistake.  But  it  has 
also  been  insisted  on,  that  the  acts  done  by  David,  his  services  in  the 
improvement  of  the  farm,  in  the  support  of  his  father,  the  payment 
of  his  debts,  and  the  erection  of  buildings,  were  in  part  performance 
of  the  alledged  agreement.  In  Ambler,  586,  the  chancellor  ob- 
served that  "  in  all  those  cases  where  the  ground  of  the  decree  has 
been  part  performance,  the  terms  of  the  agreement  must  be  certainly 
proved.  And  as  to  the  acts  done  in  part  performance  they  must  be 
such  as  could  be  done  with  no  other  view  or  design  than  to  perform 
the  agreement,  and  that  in  that  case  it  did  not  appear  but  that  the  acts 
done  might  be  done  with  other  views.''  We  have  already  stated 
that  it  has  not  been  proved  that  David  had  agreed  to  remain  on  the 
farm  to  improve  it  or  to  do  any  thing;  but  supposing  the  agreement 
had  been  proved,  do  the  acts  done  by  David  necessarily  show  them 
to  have  been  done  in  part  performance.  Delivery  of  possession  is 
considered  as  part  performance,  especially  if  money  be  expended  in 
building  according  to  the  agreement,  but  the  possession  must  be  de- 
livered in  part  performance,  for  if  it  can  be  referred  to  a  title  distinct 
from  the  agreement,  it  will  not  take  the  case  out  of  the  statute.  As 
where  a  tenant  continues  in  possession,  it  is  not  deemed  a  part  per- 
formance, for  a  tenant  of  course  continues  in  possession,  unless  he 
has  notice  to  quit,  and  the  mere  fact  of  his  continuing  in  possession 
cannot  have  any  effect.  According  to  the  allegations  in  the  bill  of 
the  terms  of  the  agreement  it  was  no  part  of  the  understanding  that 
David  was  to  have  the  exclusive  possession  of  the  farm  before  the 
death  of  his  father,  or  that  he  was  to  erect  costly  buildings  on  the 
farm,  and  pay  for  them  out  of  the  profits  of  the  farm,  or  that  he 


432  Carlisle  vs.  Fleming  et  al. 

was  to  pay  his  father's  debts  and  taxes  in  the  same  way,  or  that 
he  was  to  supply  his  father  with  money  from  the  same  source,  or 
furnish  him  with  the  means  of  support,  or  that  his  wife's  servi- 
ces, or  the  property  he  received  by  her  were  to  be  applied  to  the 
benefit  of  his  father,  therefore  the  doing  or  performing  of  these 
acts  cannot  be  taken  as  part  performance.  Neither  can  David's  con- 
tinuing to  manage  and  devote  himself  to  the  cultivation  of  the  farm, 
and  to  the  improvement  of  it,  from  the  time  he  states  the  contract  to 
have  been  made  be  considered  in  part  performance,  because  like  the 
case  of  the  tenant  he  was  only  continuing  in  the  same  relation  in 
which  he  had  stood  to  his  father  for  many  years  before,  to  wit,  from 
the  time  he  became  of  full  age  and  long  before.  From  the  deposition 
of  Mary  Carlisle  it  appears  that  the  object  of  the  old  man  was  the 
improvement  of  the  farm,  with  a  view  to  the  payment  of  his  debts. 
For  this  she  refers  to  what  the  old  man  said  when  David  came  of  age 
in  1809,  and  yet  according  to  the  admission  in  the  bill,  it  appears 
that  in  1820,  eleven  years  afterwards,  the  farm  was  in  a  very  unim- 
proved condition,  being  much  impoverished  by  long  cultivation,  with- 
out manuring,  and  the  fences  in  bad  condition,  and  a  large  por- 
tion of  the  farm  a  common;  notwithstanding  the  lime  quarry  had 
been  purchased  several  years  before,  and  that  from  the  year  1811  up 
to  the  year  1820  David's  whole  time  labor  and  exertions  were  de- 
voted to  the  cultivation  of  the  farm  and  under  his  direction ;  and  such 
deficiency  on  his  part  took  place  when  according  to  the  proof  in  the 
cause  he  had  an  ample  force  under  his  direction  to  enable  him  to 
have  placed  the  farm  in  the  best  state  of  improvement.  Beside  all 
this  the  alteration  of  David's  situation  by  his  marriage  in  1814,  and 
his  raising  a  family  of  children  in  the  old  man's  family,  his  pur- 
chasing and  owning  horses,  oxen  and  other  property,  all  paid  for  and 
fed  out  of  the  products  of  the  farm,  and  his  exercising  the  right  to 
go  and  return  when  he  pleased,  together  with  the  important  fact  of 
the  old  man's  having  sold  a  portion  of  the  farm  to  Fleming  his  son- 
in-law,  and  of  Fleming  erecting,  at  his  own  expense,  a  dwelling, 
without  any  objection  from  David,  all  takeix  together  are  sufficient  to 
have  prevented  the  chancellor  from  affording  relief  by  decreeing  a 
specific  performance.  As  to  decreeing  an  account  with  ^  view  to 
compensation  to  David  Carlisle  for  the  services  of  himself  and  his 
wife,  it  appears  to  the  court  that  if  he  be  entitled  to  such  compensa- 
tion, he  has  ample  remedy  at  law.  It  therefore  does  not  seem  neces- 
sary or  even  proper  for  this  court  to  express  any  other  opinion  in 
regard  to  this  part  of  the  case. 

Decree  affirmed  with  costs  and  record  remanded. 

J.  A.  Bayard,  for  appellants. 

Rogers,  for  appelleeSi 


SUPERIOR  COURT. 

FALL  SESSIONS, 
1834. 


JOHN  POLK,  assignee  of  the  FARMERS'  and  MECHANICS' 
BANK  vs.  THEODORE  MITCHELL,  Adm'r.  d.  b.  n.  of  MA- 
NAAN  BULL,  dec'd. 

On^oyer  prayed  and  granted,  the  deft,  is  entitled  to  a  copy  of  the  deed;  and 

the  court  will  stay  proceedings,  until  it  is  furnished. 
Deed  pleaded  with  profert.     Oyer  prayed  and  granted.     Replication  denying 

performance  of  covenants,  without  setting  out  the  deed:     Adjudged  bad  for 

this  cause. 
The  prayer  and  grant  of  oyer  does  not  make  the  deed  a  part  of  the  record.     It 

is  obligatory  on  the  party  who  would  take  advantage  of  it,  to  set  it  out. 
If  the  plff.  omits  to  aver  performance  of  a  condition  precedent  in  his  narr.  the 

deft,  should  set  the  deed  out  on  oyer  and  demur. 
After  argument  on  demurrer,  and  the  opinion  pronounced,  the  court  refused 

to  let  the  deft,  plead  over. 

Debt  on  bond.     Narr.,  Eule,  Plea,  &c. 

"The  deft,  craves  oyer  of  the  writing  obligatory  and  the  condi- 
tion afs'd.,  and  of  the  said  pretended  assignment  thereof."  Notice 
given  and  copy  demanded.  Oyer  of  the  said  writing  obligatory  and 
condition  thereof  and  assignment,  had  by  the  deft.,  and  copy  re- 
fused by  the  plaintiff;  and  thereupon  the  said  Theodore  Mitchell, 
adm'r.  &c.  by  &c.  prays  the  court  to  have  the  said  writing  obligatory 
and  the  condition  thereof,  and  the  said  pretended  assignment,  so  as 
afs'd.  stated  in  said  plaintiff's  declaration,  entered  on  the  record. 

These  pleadings  took  plan  in  vacation,  and — 

Mr.  Layton  now  moved  the  court  to  order  an  enrolment. 

The  question  is,  whether  on  a  prayer  and  grant  of  oyer,  we  are 
entitled  to  a  copy.  The  prayer  of  oyer  does  not  spread  the  deed 
upon  the  record,  (Boston  vs.  Jones;  supreme  court,  N.  C.  C.  (a) 
nor  can  we  avail  ourselves  of  any  defects  in  the  deed  itself,  or  in  the 
manner  of  pleading  it,  unless  we  can  place  the  whole  deed  on  the 

(a.)  The  learning  on  this  subject  was  very  fully  gone  into  in  the  case 
cited  of  Rufus  Easton  for  the  use  of  William  Russel  vs.  John  Jones  be- 
fore the  late  supreme  court.  The  case  was  argued  by  Rodney  and  Johns, 
Jr.  for  the  pl'ff.  and  by  Rogers- ior  the  deft. 

Harrington,  Chief  Justice,  delivered  the  following  opinion  of  the  court. 

This  is  an  action  of  covenant  on  articles  of  agreement,  dated  10th  of 
June,  1820,  by  which  the  deft.  Jones,  in  consideration  of  $1000,  the  receipt 
whereof  he  acknowledges  "  in  full  for  the  work  to  be  done,"  "  agrees  to 
build  in  a  workmanlike  manner  and  without  unnecessary  delay,  any  time 
during  the  season,  if  required  to  do  so  by  said  Easton,  a  brick  house,  in  the 

55 


434  Polk,  assignee,  &c.  vs.  Bull's  adm'e, 

record.  We  wish  to  set  it  out  in  our  plea,  and  a  copy  is  necessary  for 
that  purpose.  Without  ii  copy  or  enrollment,  the  grant  of  oyer  is  of  no 

town  of  St.  Lquis,"  of  certain  dimensions  in  said  articles  specified.  At  the 
end  of  the  articles  of  agreement  there  is  the  following  clause,  of  which  no 
notice  is  taken  in  the  declaration :  "  It  is  further  understood  that  the  house 
herein  contracted  for  shall  be  built  according  to  the  plan  which  may  be  fur- 
nished by  Rufus  Easton,  and  should  the  house  be  of  larger  dimensions 
than  above  mentioned,  then  the  difference  shall  be  paid  at  the  usual  price 
of  St.  Louis."  The  deft,  craves  oyer  of  the  writing,  &c.  which  is  granted,  and 
pleads,  (without  noticing  the  demand  of  oyer  or  setting  out  the  articles,) 
First.  That  plff.  did  not  at  any  time  during  the  season  after  the  making 
the  writing  obligatory  aforesaid,  nor  at  any  time  after  the  said  10th  of 
June,  1820,  require  him  to  build  a  brick  house  in  the  town  of  St.  Louis  of 
the  dimensions  set  forth  in  said  articles  of  agreement,  (specifying  the  di- 
mensions.) Second.  That  plfF.  dti  woi  at  any  time  during,  &c.  or  after,  &c. 
require  him  to  build  a  brick  house  in,  &c.  of  other  dimensions  than  those 
set  forth  in  said  articles,  (specifying  them.)  Third.  That  plff.  did  not  at  any 
time  during  the  season  after  making  the  writing  obligatory  aforesaid,  nor 
at  any  time  after  the  said  10th  of  June,  1820,  furnish  the  said  John  Jones 
a  plan  for  the  building  of  a  brick  house  of  the  dimensions  set  forth  in  said 
articles.  Fourth.  That  plff.  did  not  at  any  time,  &c.  furnish  him  with  the 
plan  of  any  other  brick  house  of  greater  or  other  dimensions  than  those  set 
forth  in  said  articles  of  agreement.  All  four  of  these  pleas  conclude  to  the 
coxintry.  To  these  pleas  the  plff.  demurs  generally  and  specially,  and  shows 
for  cause  of  demurrer,  First.  That  the  said  John  Jones,  after  craving  oyer 
of  the  agreement  mentioned  in  the  narr,  has  not  set  forth  the  same  as  he  was 
bound  to  do.  Second.  That  in  his  third  and  fourth  pleas  he  has  pleaded 
special  negative  pleas,  and  concluded  to  the  country  instead  of  verifying  the 
same,  &c.  Deft,  joins  in  demxirrer.  First  and  second  pleas.  The  defence  set 
up  by  the  first  and  second  pleas  is,  that  the  plff.  did  not  specially  require 
the  deft,  to  build  for  him  a  house  of  the  dimensions  stipulated,  or  of  any 
other  dimensions,  as,  according  to  the  deft's  construction  of  the  agreement, 
he  was  bound  to  do.  The  plff.  refuses  to  take  issue  upon  these  pleas,  because 
he  deems  it  to  be  wholly  immaterial  whether  he  ever  required  the  deft,  to 
build  the  house  or  not,  as  he  was  bound  to  build  it  without  any  special  re- 
quirement. There  is  no  doubt  but  that  the  object  of  pleading  is  to  arrive  at  a 
certain  point  which  will  decide  the  controversy  between  the  parties,  which 
point  must  obviously  be  material  and  of  the  substance  of  the  dispute.  1 
Ghitty  453 ;  Stevens  P.  150.  The  authorities  cited  by  the  nlff.'s  counsel  are 
therefore  all  conceded;  but  the  question  is  whether  the  issue  tendered  by 
these  pleas  is  material,  and,  if  accepted,  would  a  decision  of  the  point  thus 
made  have  decided  the  whole  cause  ?  This  depends  solely  upon  a  proper  con- 
struction of  the  agreement :  if  the  request  be  a  condition  precedent  and  it  is 
incumbent  on  the  plff.  to  require  the  deft,  to  build  before  the  obligation  on 
his  part  attaches,  such  request  is  material,  of  the  very  substance  and  the 
foundation  of  the  plff.'s  action.  The  materiality  of  these  pleas  is  there- 
fore to  be  determined  by  the  covenants  and  stipulations  of  the  parties, 
and  the  true  rule  of  construction  is  to  endeavor  to  collect  the  meaning  of 
the  parties  and  let  that  govern.  1  Saxind.  61  n.  1 ;  1  Chitty  PI.  312.  The 
language  of  that  part  of  the  instrument  to  which  these  pleas  apply,  is, 
"  that  the  said  Jones,  for  and  in  consideration  of  the  withinafter  consid- 
eration, agrees  to  build,  in  a  workmanlike  manner  and  without  unneces- 
sary delay,  any  time  during  this  season,  if  required  to  do  so  by  said  Easton, 
a  brick  house,  in  the  town  of  St.  Louis,  of  certain  specified  dimensions. 


Polk,  assignee,  &c.  vs.  Bull's  adm'r.  435 

Tise  to  us.  (2  Salk.  49 7 J  a  copy  must  be  delivered  to  the  deft,  if 
demanded,  on  oyer  prayed,  1  Sellon's  Practice,  261,  264;  1  Saund. 
Rep.  9. 

\Vootten  for  pl'tff.       The  first  demand  in  this  case  was  of  oyer 

and  a  subsequent  part  of  the  agreement  states  the  consideration  to  be 
$1000,  the  receipt  of  which  the  deft,  acknowledges  "  in  full  for  the  work 
to  be  done  as  aforesaid."  Now  what  is  the  meaning  of  the  parties  as  col- 
lected from  this  stipulation,  "  agrees  to  build,"  &c.  ?  Do  the  words  "  if  re- 
quired to  do  so  by  said  Easton  "  refer  to  the  general  covenant  to  build 
without  unnecessary  delay,  or  are  they  confined  to  the  words  immediately 
preceding,  which  form  a  more  restricted  covenant  to  build  during  the  same 
season  ?  For  whose  benefit  were  these  words,  "  any  time  during  this  sea- 
son, if  required  to  do  so  by  said  Easton,"  introduced  ?  Were  they  for  the 
benefit  of  the  deft. ;  intended  to  limit  his  obligation  of  building  the  house 
without  unnecessary  delay,  and  to  make  it  obligatory  on  him  to  build  only 
after  being  required  to  do  so ;  or  were  they  intended  for  the  benefit  of  the 
I)lff.  and  to  oblige  the  deft,  to  build  the  house  not  only  without  unnecessary 
delay  but  with  extraordinary  despatch,  that  same  season,  if  required  of 
him  by  the  plff.  The  court  cannot  see  any  room  to  doubt  the  true  con- 
struction of  this  branch  of  the  agreement,  either  considering  the  plain 
common  sense  meaning  of  the  words  used,  or  the  apparent  intention  mani- 
fested by  the  whole  instrument.  The  parties  were  contracting  for  the 
building  of  a  house  at  once;  the  money  was  to  be  paid  before  the  work  was 
done ;  the  builder  had  already  covenanted  to  execute  the  contract  without 
unnecessary  delay,  and  he  then  adds,  "  any  time  during  this  season  if  re- 
quired to  do  so."  Surely  that  construction  cannot  accord  with  the  apparent 
intention  of  the  parties  which  would  make  this  to  limit  the  obligation  of 
the  builder  to  proceed  in  the  execution  of  his  contract  only  upon  his  being 
si)ecially  required  to  do  so.  Such  a  construction  supposes,  too,  that  the 
parties  contemplated  the  possibility  of  this  house  not  being  built  at  all,  as 
it  was  not  to  be  commenced  until  after  request ;  a  supposition  wholly  in- 
consistent with  the  fact  that  the  money  was  paid  in  advance,  and  with  the 
covenant  for  building  without  unnecessary  delay.  The  court  are  therefore 
of  opinion  that  unless  this  action  had  been  brought  for  not  building  the 
house  during  the  same  season  it  was  contracted  for,  no  previous  request 
was  necessary  to  the  foundation  of  the  plff.'s  action,  and  that  consequently 
the  deft.'s  first  and  second  pleas  denying  such  request  present  an  imma- 
terial point,  which,  though  decided  for  him,  would  not  affect  the  plff.'s 
right  of  action.  Third  and  fourth  pleas.  These  pleas  are  founded  on  the 
following  clause  of  the  agreement,  which  is  not  set  forth  or  stated  in  the 
declaration,  to  wit :  "  It  isfurther  understood  that  the  house  herein  con- 
tracted for  shall  be  built  according  to  the  plan  which  may  be  furnished  by 
Euf  us  Easton,  and  should  the  house  be  of  larger  dimensions  than  above- 
mentioned,  then  the  difference  shall  be  paid  at  the  usual  price  of  St. 
Louis."  The  deft,  has  craved  oyer  of  the  writing  obligatory,  which  was 
granted,  and  he  then  pleads  that  plff.  did  not  furnish  him  with  a  plan  for 
building  this  house,  and  concludes  to  the  country.  To  this  plea  the  plff. 
demurs,  and  shows  for  cause,  that  the  deft,  has  not  set  out  the  deed  after 
oyer,  and  that  he  has  improperly  concluded  his  plea  to  the  country.  This 
is  a  question  of  strict  and  technical  pleading :  on  the  one  hand  it  is  con- 
tended that  the  deed  having  never  been  set  out  in  any  of  the  pleadings, 
forms  no  part  of  the  record,  and  the  court  can  take  no  notice  of  this  addi- 
tional clause,  which  is  the  foundation  of  these  pleas;  on  the  other  hand 


436  Polk,  assignee,  &c.  vs.  Bull's  adm'r. 

simply.  This  was  granted.  The  def  dt.  had  the  bond  and  read  it. 
He  then  demanded  that  I  should  set  out  a  copy  of  it  on  the  record; 
this  I  refused,  because  I  considered  it  irregular. 

The  court  ordered  a  copy  to  be  furnished  the  deft,  at  his  own 

it  is  urged,  either  that  the  deed  has  been  spread  out  upon  the  record,  or 
that  it  was  the  duty  of  the  plff.  to  have  set  it  out  after  oyer  prayed  and 
granted.  This  question  demands  the  first  consideration  of  the  court ;  be- 
cause, if  the  deed  itself  is  not  before  us,  it  will  be  \innecessary  to  inquire 
what  might  be  the  effect  of  any  covenants  it  may  be  said  to  contain. 

The  rules  of  pleading  have  been  formed  for  the  furtherance  of  justice. 
They  are  designed  to  comi)el  the  parties  to  present  their  claim  or  defence 
with  logical  correctness  and  precision  before  the  court ;  to  ascertain  the  real 
IJoints  in  controversy,  and  to  prevent  the  minds  of  the  court  and  jury  from 
being  drawn  off  upon  matters  immaterial,  irrelevant  or  unimportant  to  the 
true  issue.  The  reasons  in  which  these  rules  originated  may  not  in  every 
case  be  apparent ;  they  may  not  strike  at  first  view ;  but  investigation  sel- 
dom fails  to  justify  the  highest  opinion  of  the  science  of  special  pleading  as 
a  system.  In  the  common  practice  of  our  courts  we  have  seldom  occasion 
to  use  any  thing  more  than  its  leading  features  and  fundamental  rules ; 
occasionally,  however,  a  case  occurs  like  the  present  which  is  tried  upon 
the  more  subtle  distinctions  and  technical  refinements  of  special  pleading. 
When  such  cases  do  arise,  it  would  not  be  surpising  if  slips  should  be  made 
by  the  most  learned  and  able  counsel.  The  very  existence  of  a  dispute  in 
this  case  as  to  which  party  is  bound  to  set  out  an  instrument  after  oyer, 
or  whether  the  grant  of  oyer  itself  makes  the  deed  a  part  of  the  record, 
upon  which  this  cause  was  much  argued,  and  on  which  it  in  fact  in  a 
great  measure  depends,  can  only  be  accounted  for  by  the  general  looseness 
of  our  practice  and  the  infrequency  of  technical  controversy. 

The  order  of  pleading  proceeds  with  regular  steps  to  the  production  of 
an  issue,  each  steps  depending  upon  the  previous;  and  if  either  party  at 
any  step  deviates  from  this  order,  presents  that  which  is  immaterial,  or 
insufficient  to  require  an  answer,  the  other  party  may  demur,  stop,  refuse 
to  proceed,  and  demand  the  judgment  of  the  court  upon  the  matter.  Thus  if 
a  party  declare  upon  a  deed  he  need  set  out  only  so  much  of  it  in  his  declara- 
tion as  is  necessary  to  establish  his  claim.  If  he  do  not  set  out  so  much  the 
other  party  may  demur ;  if  the  defect  Appear  upon  the  declaration  he  may 
demur  at  once ;  if  it  do  not  so  appear  without  the  production  of  the  deed 
declared  on  or  of  some  other  paper,  proper  steps  must  be  taken  to  make 
such  deed  or  other  paper  a  part  of  the  record,  in  order  that  the  court  may 
judge  upon  it  in  connection  with  the  declaration.  3  Saund.  Rep.  704,  n. 
1;  Chitty  PL  119,  &c. 

If  a  party  in  his  declaration  refer  to  a  deed  with  a  profert  in  curiam,  the 
deed  is  by  intendment  of  law  in  court  during  all  the  term  after  profert  is  so 
made ;  and  after  the  term  if  the  deed  be  not  denied  it  is  returned  to  the  plff. 
By  profert  the  deed  is  shown  to  the  court  in  order  that  they  may  see  it  is  a 
valid  deed,  but  not  to  the  party  deft. ;  who,  if  he  want  to  see  it,  must  crave 
oyer.  The  craving  of  oyer  is  a  kind  of  plea  and  may  be  counterpleaded,  and 
the  grant  or  refusal  of  oyer  is  a  judgment  of  the  court.  If  the  court  refuse 
oyer  when  it  ought  to  be  granted  a  writ  of  error  will  lie.  The  judgment  of 
the  court  granting  oyer  is,  that  the  deft,  shall  have  the  deed  read  to  him, 
and,  according  to  some  of  the  authorities,  that  he  shall  have  a  copy  of  it  that 
he  may  consider  of  his  plea.  Having  heard  the  deed  read,  or  received  a 
copy  of  it,  if  the  deft,  wishes  to  make  any  use  of  it  in  his  defence,  he  must  set 


I 


Polk,  assignee,  &c.  vs.  Bull's  adm'r,  437 

expense,  and  said  that  they  would  stay  proceedings  in  the  cause,  until 
it  was  made  out,  or  otherwise  compel  the  plff.  to  furnish  it.  The 
deft,  must  necessarily  have  a  copy,  to  enable  him  to  plead;  for  if 
he  sets  the  bond  out  in  his  plea,  he  must  do  so  correctly,  or  the  plff. 

it  out  in  his  plea.  But  he  is  not  bound  so  to  set  it  out.  He  may  after  oyer 
prayed  and  granted  take  no  notice  of  the  oyer  or  of  the  deed  and  plead  the 
general  issue  or  any  other  plea ;  but  he  must  set  it  out  if  he  would  avail  him- 
self of  any  thing  contained  in  it.  And  it  sometimes  happens  that  after  oyer 
prayed,  the  deft,  pleads  without  setting  out  the  deed  and  it  becomes  neces- 
sary for  the  plff.  to  get  upon  the  record  other  parts  of  the  deed  not  set  out  in 
liis  narr.  in  which  case  he  must  pray  an  enrolment,  for  he  cannot  crave  oyer 
of  a  deed  in  his  own  possession,  nor  is  he  at  liberty  to  set  it  out  on  the  deft.'s 
oyer.  He  therefore  prays  an  enrolment,  which  being  granted  he  sets  the 
deed  out  in  his  replication.  From  all  which  it  is  evident  that  the  mere 
craving  of  oyer,  though  granted,  does  not  make  a  deed  a  part  of  the  record, 
and  that  it  is  incumbent  on  the  party  craving  oyer  to  set  out  the  deed|in  his 
pleading  if  he  would  make  any  use  of  it.  And  so  are  all  the  precedents. 
Tn  the  numerous  instances  in  Saunders'  Reports,  the  oyer  is  always  stated 
in  the  plea  after  the  appearance  and  defence,  and  the  deed  is  then  set  out  in 
the  body  of  the  plea.  1  Chitty,  418;  2  Strange,  1186;  1  Wils.  16;  1  Tidd, 
528,  531;  Steph.  PL  88;  5  Cranch,  257;  1  Chitty,  418;  2  Str.  1241;  1  Wils. 
f>7;  1  Chitty,  419;  3  Saiind.  R.  704,  n.  1;  Dougl.  476. 

The  case  of  Wallace  vs.  the  Dutchess  of  Cumberland,  cited  by  Mr.  Rod- 
ney, is  referred  to  in  2  Strange  as  qualifying  the  decision  there  made  in  the 
case  of  the  Weaver's  Company  vs.  Forrest,  et  al.  But  the  cases  stand  very 
well  together,  the  true  rule  being  that  laid  down  in  1  Chitty  420,  that  if  the 
deft,  assume  to  set  out  the  whole  of  a  deed,  the  whole  shall  be  stated  ver- 
batim et  literatim,  and  if  he  do  not  set  out  the  whole,  or  state  it  untruly, 
the  plff.  may  sign  judgment  as  for  want  of  a  plea.  Still  he  may  elect 
whether  he  will  set  out  the  deed  or  not.  And  this  rule  is  in  accordance  with 
all  the  precedents,  and  with  the  practice  as  stated  by  Chitty  in  page  421  — 
"**  When  oyer  is  prayed  of  a  bond  and  the  condition,  it  is  usual  in  practice 
not  to  set  forth  the  bond,  but  to  say,  "  and  it  is  read  to  him,  &c."  and  then 
to  pray  oyer  of  the  condition  and  set  it  forth  in  haec  verba. 

It  being  therefore  obligatory  on  the  party  who  would  take  advantage  of 
any  covenant  in  a  deed  not  disclosed  by  the  declaration  to  set  it  out  in  his 
pleading  after  oyer,  the  question  is,  has  the  deft,  in  this  case  done  so? 
X)oes  this  instrument  in  fact  form  any  part  of  the  record  upon  which  the 
•court  are  to  make  their  decision  ?  At  the  argument  of  .the  cause,  and  since, 
we  have  been  favored  with  an  inspection  of  the  original  deed;  but  this,  ac- 
cording to  the  rules  before  stated,  belongs  to  the  party  plff.  and  comes  to  us 
from  his  possession  and  by  his  permission.  It  can  form  no  oart  of  the 
record,  unless  we  were  to  suppose  that  by  consent  of  parties  the  original 
had  been  substituted  for  a  more  formal  enrolment  of  it  in  the  pleadings,  of 
which  we  have  no  evidence,  and  which  the  very  ground  of  the  demurrer, 
and  the  points  made  in  the  arguments,  deny.  The  only  record  entry  in  re- 
lation to  it  is,  that  Oyer  was  prayed  and  granted,  which  is  the  mere  docket 
note  of  the  clerk  referring  to  pleadincrs  more  at  large,  and  does  not,  ac- 
cording to  the  principles  already  laid  down,  make  the  subject  of  that  oyer 
ti  part  of  the  record.  The  foundation  therefore  of  the  3d  and  4th  pleas 
failing,  judgment  must  be  given  for  the  plff.  on  the  demurrer. 

This  obviates  the  necessity  of  deciding  upon  the  effect  of  the  concluding 
clause  of  the  agreement,  whether  it  constitutes  a  condition  precedent  the 


438  Polk,  assignee,  &c.  vs.  Bull's  adm'r. 

may  pray  an  enrolment  and  demur.  The  present  prayer  for  an 
enrolment,  does  not  come  at  a  proper  time,  nor  from  the  proper 
party;  but  the  court  will  direct  a  copy  to  be  given,  which  is  all  the 

performance  of  which  ought  to  have  been  averted  in  the  declaration ;  or  of 
the  other  point  made  in  the  argument  that  these  3d  and  4th  pleas  conclude 
improperly  to  the  countrj'.  But,  as  we  have  had  sufficient  leisure  to  exam- 
ine this  case,  and  considered  the  investigation  rather  interesting,  we  have 
formed  an  opinion  on  both  these  points,  which  we  have  no  objection  to 
intimate  though  it  be  not  necessary  to  decide  them. 

There  are  few  subjects  in  the  law  which  have  run  out  into  greater  ab- 
struseness  than  this  matter  about  conditions  precedent,  concurrent  and 
independent  covenants.  The  cases  on  the  subject  are  numerous  and  at 
variance  with  each  other.  In  some  of  the  later  cases  the  learned  judges 
have  declared  them  to  be  irreconcileable  in  principle,  but  they  impute  the 
contradiction  in  these  determinations  not  to  be  a  denial  but  a  misapplica- 
tion of  the  principle  which  professes  to  govern  them  all.  In  the  leading 
case  of  Morton  vs.  Lamh  7  Durnf.  and  East,  130,  Grose  Justice  says,  "  it  is 
"  difficult  to  reconcile  all  the  cases  in  the  books  on  the  subject  of  conditions 
"  precedent,  but  the  good  sense  to  be  extracted  from  them  all  is,  if  one  party 
"  covenant  to  do  one  thing  in  consideration  of  the  other  party's  doing  an- 
"  other,  each  must  be  ready  to  perform  .his  part  of  the  contract  at  the  time 
"  he  charges  the  other  with  the  non-performance."  So  Chitty  in  his  plead- 
ings lays  down  the  rule  thus. — "  In  general  if  the  agreement  be  that  one 
"  party  shall  do  an  act  and  that  for  the  doing  thereof  the  other  shall  pay  a 
"  sum  of  money,  the  doing  of  the  act  is  a  condition  precedent  to  the  pay- 
"  ment."  Chitty,  PI.  312.  The  rule  here  laid  down  by  the  learned  judge 
and  author  is  very  sound,  but  it  is  not  extensive  enough  to  cover  even  ad- 
judged cases  of  acknowledged  authority.  They  both  make  it  necessary  that 
the  precedent  act  or  thing  to  be  performed,  should  constitute  the  consider- 
ation of  the  subsequent  obligation,  whereas  in  an  extensive  class  of  cases 
the  precedent  act  has  no  connection  with  the  consideration.  As  in  the  case 
before  us:  the  furnishing  a  plan  is  no  part  of  the  consideration  of  the 
deft.'s  covenant  to  build  the  house,  and  yet  it  is  an  act  which  the  plfF.  has 
undertaken  to  perform,  and  which  from  the  very  nature  of  the  thing  must 
be  done  before  the  deft,  can  execute  his  contract.  For  we  cannot  adopt  the 
idea  thrown  out  by  the  pl'ffs.'s  counsel  in  the  argument  that  this  last  clause 
merely  gave  him  the  privilege  of  furnishing  a  different  plan  from  one 
before  contained  in  the  agreement;  the  agreement  furnishes  no  plan  but 
only  the  dimensions  of  the  building  to  which  the  plff.  was  to  adopt  his  plan, 
or  if  he  enlarged  them  he  was  to  pay  for  it  additionally.  This  case  therefore 
comes  not  within  the  rule  extracted  by  Chitty  from  Morton  vs.  Lamb  and 
other  cases,  and  yet  it  presents  the  case  of  a  duty  so  clearly  and  necessarily 
precedent  in  its  character  that  a  court  would  hesitate  much  to  declare  \t  an 
independent  covenant,  even  if  it  did  not,  as  it  does,  come  within  the  range 
of  other  cases  of  authority.    Willes  Rep.  496 ;  Yelv.  Rep.  76. 

As  to  the  other  points ;  the  conclusion  of  the  pleas.  It  was  contended  by 
the  deft.'s  counsel  that  after  a  deed  is  set  out  upon  Oyer,  it  becomes  a  part 
of  the  pleading  previous,  as  when  it  is  set  out  in  the  plea  it  is  made  a  part  of 
the  nnrr : — that  the  general  averment  of  the  performance  on  the  part  of 
the  plff.  in  his  narr.  embraces  the  matter  of  the  plea,  and  there  beine  now  an 
affirmative  and  a  negative,  the  plea  must  conclude  to  the  countrv.  The 
rule  is  correctly  laid  down  that  "  if  a  deed  be  set  out  in  the  plea  the  deft, 
thereby  makes  it  a  part  of  the  plff.'s  declaration."    But  he  does  not  thereby 


CoRDRY  VS.  Adams  &  wife.  439 

deft,  needs  to  enable  him  to  plead.     He  may  then  place  the  bond 
on  record  or  not,  as  he  pleases. 

Wootten,  for  plaintiff. 

LaytoUj  for  defendant. 


THOMAS  W.  EICKARDS,  next  friend  of  LOREJfZO  COEDRY  vs. 
ISAAC   ADAMS,   and    UNICE  his  wife. 

General  devise  considered  a  fee  to  effect  the  intent  of  the  testator. 

Appeal  from  the  orphans'  court. 

John  Cordrv,  late  of  Sussex  county,  dec'd.  by  his  last  will  and  tes- 
tament, dated  17th  July,  1816,  devised  and  bequeathed  as  follows. 

"  As  it  respects  what  God  has  been  pleased  to  bless  me  with  in  this 
life,  I  give,  devise  and  dispose  of  in  the  following  manner  and  form ; 
viz:  Item — I  give  and  bequeath  to  my  daughter  Milly  Adams,  one 
shilling,  and  no  more.  Item — I  give  and  bequeath  to  my  son  Spen- 
cer Cordry,  one  shilling,  and  to  have  no  more  of  my  estate.  Item 
— I  give  and  bequeath  to  my  son  John  Cordry,  twenty-five  acres  of 
land  adjoining  a  tract  which  I  have  deeded  to  be  laid  off,  beginning  at 
the  county  road  opposite  the  lane  that  leads  to  my  house,  &c.  and 
running,  &c.  until  it  intersects  with  the  line  of  the  afsd.  tract  of 
land,  already  deeded  to  him,  shall  include  twenty-five  acres  of  land, 
to  him  and  his  lieirs  forever.     Item — I  give  and  bequeath  to  my 

bring  every  thing  in  the  deed  under  the  plff.'s  general  averment  of  perform- 
ance ;  else  he  would  cure  the  defect  in  the  declaration  wherever  it  wanted 
such  averment.  If  a  plff.  fail  to  aver  performance  of  a  condition  precedent, 
the  invariable  practice  and  the  proper  course,  is  for  the  deft,  to  set  out  the 
deed  so  as  to  show  the  condition  precedent  and  demur.  When  a  partv  cove- 
nants to  do  any  thing  on  request  the  general  averment  of  licet  soepius  re- 
quisitus  is  not  sufficient,  but  a  special  request  must  be  shown,  so  in  all  cases 
of  conditions  precedent  the  performance  of  them  is  not  covered  by  the  gen- 
eral allegation  of  performance,  but  it  must  be  specially  averred.  So  you 
cannot  go  to  issue  upon  a  general  allegation  of  performance.  As  in  the  case 
of  Sayre  et  al.  vs.  Minus,  which  is  precisely  in  point : —  That  was  an  action 
of  debt  by  a  Sheriff  against  an  under  Sheriff  on  his  official  bond:  deft, 
pleaded  performance  generally ;  plff.  replied  a  particular  warrant  of  which 
deft,  ought  tg  have  made  due  return,  but  neglected,  &c.  and  this  plea  con- 
cluded to  the  country  on  the  ground  that  it  answered  the  general  allegation 
of  performance.  It  was  demurred  to  for  this  cause ;  and  Ld.  Mansfield  said 
"I  take  this  to  be  a  rule  in  pleading,  that  you  cannot  go  to  issue  on  a  general 
allegation  of  performance.  "  The  conclusion  was  therefore  held  wrong.'* 
2  Cotvp.  575;  Archh.  187;  2  Saund.  316  £-c.  1  Chittij  417;  3  Saund.  Rep, 
698 ;  [361.]  Archh.  102 ;  1  Chitty  324  Step.  PI.  252 ;  3  Burr.  1725. 

But  supposing  these  pleas  ought  to  have  concluded  with  a  verfication,  as 
we  think  they  ought,  upon  a  demurrer  the  court  will  look  into  the  whole 
record,  and  give  judgment  against  the  party  whose  pleading  was  first  defect- 
ive in  substance;  1  Chitty  662;  if  therefore  the  court  were  to  consider  this 
deed  as  a  part  of  the  record,  and  the  clause  of  it  which  we  have  construed  a 
condition  precedent  as  at  all  before  the  court,  we  should  undoubtedly  resort 
to  the  declaration  where  the  first  slip  occurs  in  the  failure  to  set  out  this  con- 
dition precedent,  and  to  aver  performance  or  that  which  would  excuse  the 


440  CoRDRY  VS.  Adams  &  wife. 

daughter  Unice  Adams,  one  shilling,  and  no  more.  Item — I  give 
and  bequeath  to  my  son  Isaac  Cordry,  one  shilling,  and  to  have  no 
more  of  my  estate.  Item — I  give  and  bequeath  to  my  son  William 
Cordry  one  feather  bed,  one  cow  and  calf,  and  one  half  part  of  the 
residue  of  my  lands  which  I  have  not  devised  or  deeded  away. 
Item — I  give  and  bequeath  to  my  son  Elijah  Cordry  ten  acres  of 
land  adjoining  a  tract  which  I  have  deeded  to  him  to  be  laid  off,  &c. 
also  one  feather  bed  and  one  cow  and  calf.  Item — I  give  and  be- 
queath to  my  son  James  Cordry  one  half  part  of  the  residue  of  all 
my  lands  which  I  have  not  already  disposed  by  will  or  deed;  but  if 
James  should  die  without  issue  it  is  my  will  and  desire  that  my  son 
William  should  have  his  part  to  him  and  his  heirs  forever.  Item — I 
give  to  my  four  youngest  children,  Sally,  Betsy,  Nelly  and  James 
Cordry,  all  the  residue  of  my  personal  property  which  is  not  before 
named  or  given  in  this  my  last  will,  to  them  and  their  heirs  forever.'* 

And  the  said  testator  appointed  Spenser  and  John  Cordry  his  ex- 
ecutors, who  proved  the  Avill. 

After  the  death  of  William  Cordry,  Isaac  Adams  and  Unice  his 
wife  filed  their  petition  in  the  Orphans'  court  for  a  division  of  the 
lands  devised  to  him  on  the  ground  that  he  took  but  a  life  estate  un- 
der the  will  afsd.  and  that  the  said  John  Cordry,  the  father,  died 
intestate  as  to  the  reversion  of  said  lands;  and  on  the  coming  in  of 
the  return,  a  rule  was  granted  at  the  instance  of  the  next  friend  of 
Lorenzo  H.  Cordry,  son  and  heir  of  the  said  William  Cordry,  to  show 
cause  why  the  return  and  proceedings  should  not  be  set  aside.  The 
Orphans'  court,  upon  hearing,  discharged  this  rule  and  aflfirmed  the 
return  "  upon  the  ground  that  the  said  William  Cordry  took  but  a  life 
estate  under  and  by  the  said  last  will  and  testament  of  the  said  John 
Cordry;  and  thereupon  the  said  Isaac  Adams,  in  right  of  his  wife  the 
said  IJnice,  and  the  other  children  and  legal  representatives  of  the 
said  testator  mentioned  in  said  petition,  were  entitled  to  such  part 
and  share  of  the  reversionary  interest  in  said  lands  and  premises  as 
is  mentioned  and  set  forth  in  said  petition."  Whereupon  an  appeal 
was  prayed  and  granted." 

performance  of  it.  But  for  the  reasons  before  assigned;  judging  of  the 
record  as  we  find  it,  the  Plff.  must  have  judgment  on  his  demurrer. 

After  the  opinion  of  the  court  was  pronounced  the  deft.'s  counsel  moved 
for  leave  to  plead  over  which  the  court  refused.  The  parties  came  to  the 
argument  of  the  demurrer  with  an  avowal  that  the  determination  of  the 
cause  rested  upon  it ;  the  argument  involved  a  construction  of  the  contract ; 
the  deft,  adhered  to  his  pleading  until  after  solemn  argument  and  a  whole 
vacation  taken  by  the  court  to  consider,  the  opinion  of  the  court  has  been 
pronounced,  and  the  judgment  if  not  actually  entered,  at  least  ordered ;  the 
plff.  has  been  delayed  two  terms  by  this  proceeding;  and  the  practice  of 
allowing  amendments  at  this  stage  of  the  proceedings  if  generally  adopted, 
would  produce  endless  delay.  The  defence  set  up  in  this  cause  is  not  of  a 
character  to  entitle  it  to  peculiar  consideration,  being  only  evasive  of  the 
obligations  imposed  on  deft,  by  his  contract,  and  for  which  he  has  been  paid; 
and  he  still  has  an  opportunity  for  any  just  defence  before  the  jury  of 
inquiry. 

Motion  refused. 


CoRDRY  VS.  Adams  &  wife.  441 

Mr.  Wootten.  The  particular  \^''ords  of  the  devise  being  to  Wil- 
liam Cordry  without  any  words  of  limitation  superadded,  would,  I 
admit,  carry  but  a  life  estate;  but  I  contend  that  according  to  the 
manifest  intention  of  the  testator,  William  Cordry  was  to  have  a  fee 
He  designed  to  dispose  of  all  his  estate;  expressly  cuts  of  some  of 
his  children  with  a  shilling,  and  declares  it  to  be  his  will  that  the 
shall  have  no  more  of  his  estate.  A  particular  devise  for  life  may 
be  construed  a  fee  to  carry  out  a  general  intent :  much  more  a  general 
devise  which  is  in  itself  restricted  to  a  life  estate  only  bv  implication. 
S  East,  141 ;  1  Wm.  Blac.  535 ;  3  Dallas,  477. 

Mr.  Layton,  for  appellee.  It  is  apparent  that  the  testator  knew 
how  to  devise  a  fee  and  what  was  the  effect  of  words  of  limitation; 
for  he  has  devised  estates  in  fee  simple,  fee  tail  and. for  life.  The 
bequest  of  a  shilling  and  no  more  meant  no  more  of  his  personal 
estate.  That  form  of  expression  is  used  in  the  bequests  to  his  daugh- 
ters; the  sons  had  been  provided  for,  and  he  adds  to  the  bequests 
made  them  that  they  are  to  have  no  more  of  his  estate.  The  peti- 
tioners claim  the  land  not  under  the  will  but  under  the  intestate  laws. 
It  is  very  plain  that  the  testator  died  intestate  as  to  this  reversion. 

Mr.  Wootten  in  reply,  referi'ed  to  the  introductory  clause  as  show- 
ing that  the  testator  meant  to  give  away  all  his  estate. 

Mr.  Justice  Harrington  delivered  the  following  as  the  opinion  of 
the  court;  though  Judge  Black  inclined  the  other  way. 

The  devise  to  William  Cordry  beinsr  general  and  without  any 
words  of  limitation,  carries  but  a  life  estate  unless  a  manifest  intent 
is  apparent  from  the  other  parts  of  the  will,  to  give  him  a  larger 
■estate.  The  introductory  clause,  though  important  in  a  consilera- 
tion  of  the  whole  will,  is  not  of  itself  sufficient  to  enlarge  the  gen- 
eral devise,  but  may  be  taken  in  connexion  with  the  other  parts  to 
show  the  meaning  which  the  testator  attached  to  his  devise  to  Wil- 
liam, and  the  extent  to  which  he  designed  him  to  be  benefitted  by 
that  devise.  Independently  of  the  introductorj^  clause,  it  does  ap- 
pear from  the  will  that  the  testator  designed  to  part  with  his  whole 
■estate,  and  not  to  die  intestate  as  to  any  part  thereof;  for  he  notices 
all  his  children  even  those  to  whom,  having  probably  been  already 
advanced  by  him  to  the  extent  of  their  equal  share,  he  bequeathed  a 
shilling  and  no  more;  recognizes  certain  conveyances  by  deed  which 
lie  had  already  made  of  a  part  of  his  property  —  and,  after  some  de- 
vises of  land,  he  gives  to  William  one  half  part  of  the  residue  of  his 
lands,  and  to  James  one  half  part  of  the  residue  of  all  his  lands 
which  he  had  not  already  disposed  of  by  will  or  deed.  Ilis  personal 
property  he  in  like  manner  parcels  out;  and  in  a  very  comprehensive 
residuary  bequest,  disposes  of  "  all  the  residue  of  his  personal  prop- 
erty which  is  not  before  named  or  given  in  that  his  last  will  "  to  his 
four  youngest  children.  It  is  impossible  to  surtpose,  from  this  view 
of  the  will,  that  the  testator  did  not  design  to  dispose  of  all  his  prop- 
erty, and  he  expressly  declares  his  intention  to  do  so  in  the  introduc- 
tory clause  —  "  as  it  respects  what  God  has  been  pleased  to  bless  me 
-with  in  this  life,  I  give,  devise  and  dispose  of,"  &c. 

It  is  not  less  apparent  that  the  testator  intended  that  his  daughter 
TJnice  Adams,  the  present  petitioner,  should  in  no  event  have  any 
thing  more  than  the  shilling  he  bequeathed  her.     It  was  said,  how- 

56 


442  CoRDRY  vs.  Adams  &  wife. 

ever,  in  the  argument  that  this  was  to  be  confined  to  the  personal 
property;  conceding  that  the  testator  had  cut  her  off  from  any  fur- 
ther participation  in  that.  But  if  the  bequest  to  Unice  Adama 
could  be  thus  restricted,  which  we  think  it  cannot,  the  several  be- 
quests to  Spenser  and  Isaac  clearly  cannot,  for  the  expression  there 
is  that  they  shall  have  no  more  of  his  estate,  which  cannot  by  any 
stress  be  confined  to  the  personality.  And  if  it  is  manifest  that  the 
testator  designed  that  Spenser  and  Isaac  should  in  no  event  have  any 
more  of  his  estate,  it  is  equally  fatal  to  the  ground  taken  by  the  pe- 
titioner's counsel,  for  it  requires  a  fee  in  William  to  execute  that 
intention.  As  in  the  case  of  Bates  and  wife  vs.  Clayton,  et  al.  8 
East  141  where  the  testator  bequeathed  to  N.  Bates  a  shilling  and  that 
he  should  not  come  upon  his  premises  or  hereditaments  on  any 
account  whatsoever;  the  court  construed  a  subsequent  general  devise 
of  land  to  Wright  Thomas  Bates  to  be  a  fee,  because  otherwise  N. 
Bates  might,  on  the  determination  of  his  life  estate  have  a  right  to 
come  upon  the  premises  against  the  manifest  intention  of  the  testator. 
So  in  this  case,  if  the  general  devise  to  William  Cordry  be  not  con- 
strued to  carry  the  fee,  Spenser  and  Isaac  Cordry,  and  also  Milly 
and  Unice  Adams,  would,  on  the  expiration  of  his  life  estate  be  en- 
titled to  equal  shares  with  the  other  children  of  the  land  so  devised 
to  William,  against  the  manifest  intent  of  the  testator.  We  think 
it  clearly  appears  from  this  will  that  the  testator's  design  and  object 
were  to  dispose  of  his  whole  property;  to  give  his  son  William  a  fee 
in  one  half  the  residue  of  his  lands  not  before  disposed  of;  and  to  cut 
off  his  sons  Spencer  and  Isaac,  and  his  daughters  Milly  and  Unice^ 
with  a  shilling.  The  decision  of  the  Orphans'  court  was,  therefore, 
erroneous,  and  ought  to  be  reversed;  and  the  return  made  and  pro- 
ceedings had  in  the  said  court  for  a  partition  of  the  said  land  among 
the  heirs  at  law  of  John  Cordry  ought  to  be  set  aside." 

Decree  reversed. 

Wootten,  for  appellant. 

Layton,  for  respondent. 


PURN^EL    JOHNSO^^    vs.    JOHX    FLEETWOOD,    garnishee    of 
JESSE  GREEN,  Junior. 

ROBERT  HOUSTON"  vs.  The  same  defendant. 
A  wife's  chose  in  action  is  liable  to  be  attached  for  the  debt  of  her  husband. 

Issues  on  a  plea  of  nulla  bona. 

Plff.  gave  in  evidence  a  judgment  at  the  suit  of  Benton  Harris  for 
the  use  of  Eliza  Ann  Harris  against  John  Fleetwood;  and  proved 
that  Jesse  Green,  jr.  had  married  the  said  Eliza  Ann  Harris. 

The  doubt  which  arose  in  the  case  was  whether  a  those  in  action 
belonging  to  a  man  in  right  of  his  wife  could  be  attached  before  the 
husband  had  reduced  it  into  possession.  Neither  the  defendant 
Green  nor  Fleetwood  the  garnishee  had  counsel. 

The  court  permitted  a  verdict  to  be  taken  in  each  case,  "  that 
Fleetwood  was  indebted  to  Eliza  Ann  Green,  wife  of  Jesse  Green, 
junior,  in  the  sum  of  $194  58,  on  a  judgment  due  her  dum  sola;  '* 


JoHXsox  1-5.  Greex,  jun'r's.  garnishee.  4-t3 

and,  upon  consideration,  gave  judgment  against  the  garnishee  on  the 
said  verdict. 

Black,  Justice: 

Husband  and  wife  are  by  the  principles  of  the  common  law  con- 
sidered as  one  person,  and  her  legal  existence  merged  or  suspended 
during  their  union;  all  the  rights  and  duties  which  are  hers  at  the 
marriage  become  the  rights  and  duties  of  the  husband  while  the  union 
lasts.  By  marriage  the  husband  acquires  an  absolute  unqualified 
interest  in  the  personal  chattels  of  the  wife.  Her  choses  in  action 
vesCin  him  at  the  marriage  and  he  acquires  in  them  a  qualified  inter- 
est or  property,  that  is  he  may  reduce  them  to  possession,  and  thus 
make  them  his  property  absolutely.  These  choses  in  action  are 
nothing  more  than  rights  arising  from  contracts  expressed  or  im- 
plied, and  these  rights  of  the  wife  become  on  the  marriage  the 
rights  of  the  husband;  they  remain  in  him;  he  can  control,  dispose 
of,  or  reduce  them  to  possession  and  make  his  title  absolute,  but 
whether  this  be  done  or  not  they  continue  during  the  union  his 
rights.  Clancy,  3,  4.  If  one  be  attainted  or  outlawed  his  goods 
and  chattels  are  declared  by  the  law  to  be  forfeited,  and  in  such 
cases  the  chattels  real  and  personal  and  the  choses  in  action  which 
belonged  to  the  wife  pass  on  the  conviction  or  outlawry  of  the  hus- 
band to  the  crown  as  forfeited.  1  P.  Wms.  253;  9  do.  199;  Plowd. 
262.  In  assignments  by  operation  of  law  as  in  bankruptcy  where 
all  the  estate  and  debts  of  the  bankrupt  vest  in  the  commissioners, 
and  are  transferred  by  them  to  assignees,  the  choses  in  action  of  the 
wife  are  held  invariably  to  pass,  and  if  the  assignees  reduce  them  to 
possession  before  the  death  of  the  husband,  all  right  of  thf>  wife  is 
extinguished.  2  Kent,  138;  1  P.  ^Yms.  249;  2  Mad.  Ch.  636. 
The  law  is  the  same  in  the  case  of  voluntary  assignments  by  insol- 
vents on  taking  the  benefit  of  the  insolvent  laws,  subject  as  in  the 
preceding  case  to  the  rijjht  of  the  wife  to  claim  for  hor  own  use  the 
chose  in  action,  provided  she  survives  her  husband,  and  that  at  his 
death  it  has  not  been  reduced  to  possession  by  the  assignees.  Clancy, 
128;  2  Mad.  C.  C.  16;  1  P.  Wms.  (in  note)  459.  The  debts 
due  from  the  wife  dvni  sola  are  discharged  by  the  certificate  of 
bankruptcy  of  the  husband.  1  P.  Wms.  249,  254.  In  all  these  cases 
general  terms  are  iised  —  his  estate,  debts,  &c.  The  courts  have 
adopted  the  principle  that  the  debts,  &c.  or  choses  which  belonged 
to  the  wife  at  the  marriage,  became  the  debts  or  choses  of  the  hus- 
band, and  passed  by  actual  assignment,  or  in  a  transfer  by  operation 
of  law  as  his  debts  and  choses;  that  the  assignee  acquired  all  the 
rights  of  the  husband  in  relation  to  such  debts,  and  stood  in  the 
shoes  of  the  husband  and  had  the  same  powers  which  he  had.  Our 
attachment  law  is  not  less  comprehensive  in  its  terms  than  the  bank- 
rupt or  insolvent  law  to  which  we  have  referred,  so  far  as  it  relates 
to  the  estate  or  debts  that  mav  be  attached.  By  it  the  plff.  is  author- 
ized to  attach  the  defendant  "  by  all  his,  her  or  their  goods  and 
chattels,  rights  and  credits,  lands  or  tenements,  in  whose  hands  or 
possession  the  same  may  be.''  The  chose  in  action  of  the  wife  is 
vested  in  the  husband ;  he  alone  can  receive  it ;  she  has  no  such  power ; 
he  alone  can  claim:  the  right  to  it  is  his;  the  right  to  receive  it  or 
compel  the  payment  is  liis;  all  his  rights  his  creditor  is  authorized 


444  Shrowders  vs.  Harper. 

by  the  law  to  attach;  this  is  a  clear  right  of  the  husband;  the  right 
to  compel  the  payment  to  him  of  the  debt  which  was  due  the  wife, 
and  whenever  it  is  attached,  the  creditor  by  operation  of  law  is 
placed  in  relation  to  the  debt  where  the  husband  previously  stood, 
clothed  with  all  the  rights  and  power  as  to  such  debt  which  the  hus- 
band had  previously  possessed.  If  he  can  possess  himself  of  the  debt 
before  the  husband  dies  it  is  his;  if  he  does  not  do  this,  then  the 
wife,  if  she  survives,  would  be  entitled  to  it.  Could  it  be  contended 
with  any  degree  of  seriousness  under  our  insolvent  laws  that  the 
debts  due  the  wife  did  not  pass  to  the  assignees  on  the  discharge  of 
and  assignment  by  the  husband  of  all  his  rights  and  credits?  Was  it 
ever  designed  by  those  laws  that  a  husband  should  have  the  benefit 
of  them  who  had  due  to  him  in  right  of  his  wife,  debts  to  a  large 
amount  and  more  than  sufficient  to  pay  all  his  debts,  unless  he  trans- 
ferred such  debts  for  the  benefit  of  his  creditors?  certainly  not;  and 
if  there  be  in  such  a  case  no  doubt  it  would  seem  difficult  to  raise  one 
under  our  attachment  law  when  the  terms  used  in  relation  to  the 
property  and  estate  are  very  nearly  the  same.  Each  act  uses  the 
words  "  goods,  chattels,  rights  and  credits."  It  is  true  there  is  ad- 
ditionally in  the  insolvent  act  the  words  "  personal  estate  of  every 
nature  and  description,"  but  if  the  debt  due  the  wife  cannot  be  com- 
prehended under  the  terms  "  rights  and  credits,"  it  would  be  not 
less  difficult  to  cover  it  by  the  term  "  personal  estate."  In  each  law 
it  was  the  intention  of  the  legislature  that  the  assignee  or  the  attach- 
ing creditor  should  have  all  those  goods,  chattels,  rights  and  credits 
which  the  insolvent  or  debtor  attached,  could  have^  take,  or  turn 
into  mone)',  as  fully  and  with  like  power  as  the  insolvent  or  debtor. 
They  were  substituted  in  his  place.  In  the  present  case  the  husband 
is  still  living;  his  creditor  therefore  who  has  attached  this  debt  due 
to  the  wife  is  entitled  to  judgment  against  the  garnishee  Fleetwood 
on  the  verdict. 

Rohinson,  for  Johnson. 

Layton,  for  Houston. 


SHROWDERS  vs.  HARPER. 

The  plaintiff  is  competent  to  prove  the  loss  and  manner  of  the  loss  of  a  bond. 

The  proof  is  to  the  court  who  are  to  be  satisfied  of  the  loss  before  admitting 
secondary  evidence. 

The  loss  of  a  paper  is  first  to  be  proved;  then  the  execution  in  the  same  man- 
ner as  if  produced. 

Action  of  debt  to  recover  $650,  the  amount  of  certain  bills  and 
notes  given  by  deft,  to  plaintiff,  and  which  had  been  destroyed. 
Pleas,  non  est  factum;  payment,  discount  and  set-off  as  to  the  counts 
on  the  bills;  and  as  to  counts  on  the  promissory  notes  nil  debet, 
payment,  set-off  and  act  of  limitations.  There  were  twenty-four 
counts  in  the  narr. 

The  plfE.  called  a  witness  to  prove  the  contents  of  notes,  &c. 

Frame,  for  defendant.  There  is  no  profert  of  the  notes,  &c.  Non 
est  factum  is  pleaded  and  it  puts  plff.  to  the  production  of  the  deed. 
Profert  is  excused  where  the  instrument  is  lost;  but  the  loss  must  be 


Shrowders  vs.  Harper.  445 

first  proved.  The  attesting  witness  must  be  called  to  prove  the  deed; 
or,  if  proof  is  made  of  its  loss,  secondary  evidence  is  then  admis- 
sible. 

Huffington,  for  plaintiff.  The  destruction  of  the  notes,  &c.  is 
not  traversed  by  the  pleadings,  and  therefore  is  admitted. 

Per  curiam. 

Plff.  must  first  prove  the  loss  or  destruction  of  the  notes  and  bills 
declared  on.  Xon  est  factum  and  nil  debet  put  every  thing  in  issue. 
The  loss  is  stated  in  the  narr  to  dispense  with  the  necessity  of  pro- 
fert;  when  the  loss  is  proved;  proof  of  execution  must  follow,  and 
this  must  be  made  by  subscribing  witnesses  exactly  as  if  the  paper 
was  produced;  or,  if  there  be  no  instrumentary  witness,  theh  by 
proof  of  handwriting,  &c. 

The  plaintiff  was  then  offered  to  prove  the  loss  or  destruction  af 
the  notes,  &c.,  and  objected  to. 

Frame.  To  admit  this  testimony  would  be  to  permit  the  plaintiff 
to  prove  his  whole  case.  The  ordinary  course  of  business  is  for  a 
man  to  tear  up,  cancel  or  destroy  a  note  when  it  is  paid  off;  cancel- 
lation is  itself  prima  facie  evidence  of  payment.  And  shall  the  plff. 
himself  by  his  own  oath  contradict  this  and  set  up  such  a  paper?  It 
would  be  a  doctrine  of  extreme  danger  and  not  warranted  by  the  au- 
thority of  adjudged  cases  here  or  in  England. 

Huffington.  The  rule  is  one  of  necessity.  If  papers  are  burnt, 
lost  by  accident  or  destroyed,  the  party  who  was  in  possession  at  the 
time  of  the  accident  is  the  only  one  who  can  prove  the  loss.  The 
party  is  allowed  to  prove  the  death  of  a  subscribing  witness;  and  if 
admissible  (as  the  cases  in  this  country  go  to  establish)  to  prove  the 
loss,  he  must  from  the  same  necessity  be  allowed  to  prove  the  man- 
ner of  the  loss,  or  destruction,  as  a  part  of  the  very  transaction,  16 
Johns.  Rep.  193;  4  Binney  314,  38;  2  Phillips'  Ev.  87,  note.  And 
this  question  is  ior  the  court  and  not  for  the  jury.  See  also  2  Stark. 
Ev.  350,  and  in  notes.     3  Tenn,  151. 

Per  curiam.  The  plaintiff  may  .be  examined  to  prove  the  loss 
and  the  manner  of  the  loss  of  the  papers  declared  on.  In  1  Atk. 
Rep.  288,  the  party  was  allowed  to  prove  the  fraudulent  possession 
which  at  once  established  the  paper.  The  principle  of  that  case  and 
this  is  the  same. 

The  plff.  was  then  sworn  and  after  he  had  deposed  to  the  de- 
struction. 

Frame  asked  leave,  before  the  case  went  further,  to  produce  wit- 
nesses to  impeach  his  credit. 

Per  cur.  The  loss  or  destruction  of  the  instrument  declared  on 
must  be  made  out  as  any  other  fact  by  credible  testimony.  The 
court  have  to  be  satisfied  of  the  fact,  and  if  the  plff.  can  be  shown 
to  be  unworthy  of  credit  it  is  not  proved  to  their  satisfaction.  The 
deft,  is  therefore  at  liberty,  at  this  stage  of  the  cause,  to  impeach 
the  credit  of  the  plaintiff. 

On  the  suggestion  of  the  court,  however,  the  whole  matter  was  by 
consent  left  to  the  jury,  and, the  case  proceeded. 

Verdict  for  plaintiff. 

Huffington,  for  plaintiff. 

Frame,  for  defendant. 


446  Guthrie  vs.  Hyatt. 

JACOB  MINUS  IS.  THOMAS  STANT  and  THOMAS  HARVEY. 

If  a  judgment  be  discharged  by  payment  or  an  express  agreement  which  is 
carried  into  execution;  and  the  plff.  takes  and  levies  an  execution  he  is  a 
trespasser. 

If  a  plff.  in  an  execution  orders  the  constable  to  sell  before  the  time  allowed 
by  law;  he,  as  well  as  the  constable,  is  a  trespasser. 

Trespass  quare  clausum  fregit,  "  and  destroyed  grass,  corn,  &c. 
and  for  "  carrying  away  divers  goods"  &c. 

The  defts.  pleaded  not  guilty  and  also  justified,  to  wit:  Harvey 
that  he  entered  by  virtue  of  his  office  as  a  constable  and  sold  the 
goods  on  a  certain  judgment  and  execution  at  the  suit  of  Stant 
against  Minus,  and  also  a  judgment  and  execution  at  the  suit  of 
tiesse  Read;  and  the  deft.  Stant  justified  as  a  plff.  in  the  execution 
and  a  purchaser  at  the  sale. 

Stant's  judgment  bore  date  27th  June,  1832,  and  the  execution 
was  issued  on  the  9th  October,  1833.  The  sale  took  place  on  the 
17th  or  18th  of  October.  It  was  proved  that  Minus  had  hired  to 
Stant  two  boys  whose  wages  were  to  be  in  payment  of  his  judgment; 
the  one  for  thirty-two  dollars  and  the  other  for  twelve  dollars  from 
March  to  December,  and  that  the  boys  had  worked  with  Stant.  The 
execution  on  Read's  judgment  issued  on  the  10th  of  April,  and  was 
returnable  on  the  4th  September,  1833,  but  was  not  returned  until 
the  twenty-third  of  October. 

The  Chief  Justice  charged  the  jury — That  if  the  judgment  of  the 
deft.  Stant  was  actually  paid;  or  there  was  a  positive  contract  for 
the  hire  of  the  boys  and  that  their  hire  should  be  in  payment  of  the 
judgment  and  was  to  the  amount  of  the  judgment;  if  the  deft,  after- 
wards took  out  an  execution  which  was  levied  on  the  plff.'s  goods 
this  would  in  him  be  a  trespass.  13  Com.  Law  Rep.  104.  And  if 
Stant  ordered  Harvey  to  proceed  with  the  sale  and  sell  to  the  amount 
of  his  execution  when  it  had  not  been  in  his  hands  ten  days,  and 
he  did  so  sell,  Stant  is  from  this  command  a  trespasser  as  well  as  the 
constable. 

Verdict  for  plaintiff. 

Bates  and  Clayton,  for  plaintiff. 

Frame,  for  defendants. 


MARTHA  GUTHRIE  vs.  JOHN  V.  HYATT. 

Assumpsit  is  a  very  liberal  form  of  action;  and  will  lie  to  recover  back  money 
paid  to  a  trustee  for  a  specific  purpose,  if  it  has  not  been  applied  to  that 
purpose,  and  he  promises  to  refund  it. 

Case.  Najr.  Pleas.  Non  assumpsit;  payment;  discount,  and 
act  of  limitations.     Issues. 

It  was  an  action  of  assumpsit,  and  the  narr.  contained  the  usual 
money  counts.  The  plff.  proved  her  case  by  the  production  of  the 
following  receipt,  and  by  evidence  of  several  promises  by  the  deft, 
to  pay  the  money.  "  Received  I'ebruary  6,  1827,  of  Martha  Guthrie 
bv  the  hands  of  James  Guthrie,  $70,00 ;  likewise  received,  December 
2Ck  1827,  of  the  said  :Martha  Guthrie,  $230,00 ;  making  together 
$300,00;  which  sum  is  put  to  interest  for  the  benefit  of  the  said 
Martha  Guthrie. 

Signed,  John  V.  Hyatt." 


HuGGiNs  VS.  McGregor.  447 

Bayard  objected  that  on  the  face  of  the  paper  it  appears  that  the 
cleft,  did  not  take  the  money  as  a  borrower,  but  merely  as  a  trustee; 
in  which  character  he  is  not  liable  in  this  action,  nor  otherwise  than 
upon  a  bill  in  chancery.  If  he  received  the  money  as  a  trustee, 
his  promise  to  refund  it  was  as  such,  and  the  promise  of  a  trustee 
affords  no  ground  of  action  at  law.  This  defence  was  made  in  behalf 
of  Hyatt's  bail  for  whom  Mr.  Bayard  appeared. 

Gilpm,  for  plff.  denied  that  the  paper  proved  the  money  to  have 
been  paid  in  Hyatt's  hands  in  the  character  of  a  trustee  to  lend  at 
interest,  or  that  there  was  any  evidence  that  it  was  so  loaned  by 
Hyatt.  The  action  of  assumpsit  is  a  remedy  peculiarly  suited  to 
such  a  case  as  this.  Wherever  money  is  received  by  one  which 
belongs  to  another,  and  which  he  equitably  ought  to  pay  to  that  other, 
he  may  be  compelled  to  do  so  in  this  form  of  proceeding.  If  Hyatt 
did  put  out  the  money  it  was  in  his  own  name  and  was  such  a  con- 
version as  would  charge  him.  The  payments  on  account  and  prom- 
ises to  pay  the  balance,  show  the  character  in  which  Hyatt  received 
the  money. 

The  Court  construed  the  paper  as  an  acknowledgment  of  money 
received  by  the  deft,  for  his  own  use;  but  they  said,  additionally, 
that  if  it  had  been  merely  deposited  in  his  hands  to  loan  out  for  the 
plff.  she  might  recover  it  back  under  the  proof  in  this  cause.  The 
miction  of  assumpsit  has  been  likened  to  a  bill  in  equity.  ^Vherever 
a  man  has  in  his  hands  money  belonging  to  another  which  he  cannot 
equitably  retain  and  he  either  promises  or  the  law  can  raise  an  im- 
plied promise  to  pay  it,  it  may  be  recovered  in  this  form  of  action. 
The  deft,  here  acknowledges  the  receipt  of  money  belonging  to  Mrs. 
liuthi-ie,  and  if  you  please  to  loan  out  for  her,  he  still  retains  it  in 
liis  hands,  or  he  has  shown  no  other  investment  of  it;  and  when  called 
on  he  promises  to  pay  it  repeatedly.  Assumpsit  will  well  lie  in  such 
a  case.  Verdict  and  judgment  for  plff. 

Gilpin,  for  plff. 

J,  A.  Bayard,  for  deft.'s  bail. 


I.EVI  HUGGINS  (deft.  b.  appellant)  vs.  MAETHA  McGEEGOE, 
(plff.  b.  respondent. 

Prescriptive  right  of  way  presumed  from  twenty  years  enjoyment. 
"Right  of  way  from  necessity  —  when. 

Appeal  from  the  judgment  of  a  justice  of  the  peace. 

This  was  an  action  of  trespass  for  breaking  and  entering  plff.'s 
■close,  treading  down  the  grass,  &c.  The  pleas  were  not  guilty;  justi- 
fication under  a  right  of  way,  and  liberum  tenementum. 

The  defendant  claimed  a  right  of  way ;  First,  From  necessity ;  and 
secondly.  From  uninterrupted  use  and  enjoyment. 

The  court. 

TVe  know  of  but  one  case  where  a  right  of  way  can  arise  from 
necessity,  and  that  is  when  one  sells  land  to  another  which  is  sur- 
rounded by  other  lands  of  the  vendor.  Here  from  the  necessity  of 
the  case  the  grant  carries  with  it  a  right  of  way  over  some  part  of  the 
vendors  land.  A  right  of  way  by  prescription  may  arise  from  long 
iTse,    Wherever  a  person  has  been  in  the  uninterrupted  use  and  oc- 


448  COLESBERRY  VS.   StOOPS. 

cupation  of  a  right  of  way  over  another's  grounds  for  twenty  years, 
the  jury  may  presume  a  grant.    It  is  a  question  of  fact  for  the  jury 

Verdict  for  the  appellant. 

Wales,  for  appellant. 

Rogers,  for  appellee. 


WILLIAM  HUKILL,  deft.  b.  appellant,  vs.  ROBERT  BAILEY,  plff. 

b.  appellate. 

Appeal  from  the  judgment  of  John  Conwell,  Esq.  a  justice  of  the 
peace. 

This  was  an  action  against  a  constable  for  neglecting  to  return  an 
execution  at  the  suit  of  Bailey  against  James  Spencer,  delivered  to 
him  to  be  executed.  Tlie  plaintiff  declared  in  debt  on  the  statute  and 
the  deft,  demurred  generally  and  specially.     Dig.  341,  sec.  18. 

The  court  sustained  the  demurrer  on  the  authority  of  Humphries 
vs.  Webster,  ante  34. 

The  remedy  is  by  action  on  the  case  founded  on  the  neglect  of 
duty  and  consequent  statutory  liability.  Perhaps  debt  on  the  statute 
would  lie.  Chitty  says  whenever  a  statute  imposes  a  penalty,  debt 
will  lie.     Quere. — Is  not  this  a  penalty? 

Judgment  for  demurrant. 

Booth,  for  plff. 

Read,  Jr.  for  deft. 

Note.  This  was  before  the  supplement  (8  vol.  265,)  which  gives 
jurisdiction  to  the  justices  of  the  peace. 


HENRY  COLESBERRY  (defendant  below)  vs.  AARON  STOOPS 

(plff.  below.) 

On  judgment  by  default  the  justice  ought  to  state  that  it  was  after  hearing 

the  proofs  and  allegations  of  the  plaintiff. 
But  if  it  appears  from  the  record  that  he  did  so,  it  will  be  sufficient. 
Covenant  will  lie  before  a  justice  in  some  cases. 

Certiorari  to  John  Wiley,  Esq.  a  justice  of  the  peace. 
Record.     Summons  issued  July  14th,  1834,  returnable  on  Monday 
July   21st,    1834,   before  John   Wiley,   at   his   office   in  Newcastle. 
Demand  $2  71,  on  the  following  account: 
Doctor  Henry  Colesberry 

to  Aaron  Stoops  Dr. 
]  834,  March  24. —  To  forty-one  peach  trees  furnished  according  to 
your  lease  to  me  by  J.  Reeve,  through  Capt.  James. 
McCullough  at  six  cents,  $2  46 

To  cash  paid  Capt.  J.  McCullough  for  trouble,  25 

As  per  the  annexed  bill  and  receipt,"  $2  71 

Then  followed  a  bill  of  the  trees  from  S.  Reece  to  James  McCul- 
lough, and  a  receipt  from  McCullough  to  Stoops  for  $2  71. 

The  summons  was  returned,  "  served  personally,  July  20th,  1834." 
"July  21,  1834.  The  deft,  appeared  and  craves  further  time  until 
Saturday,  July  26,  1834,  which  is  granted.  Saturday  July  26,  1834. 
The  plff.  appears  and  the  deft,  not  appearing,  I  enter  judgment  for 
the  plff.  for  two^ollars  and  seventy-one  cents,  with  costs  of  suit,  &c." 
Exceptions.    First.  Because  it  appears  that  the  action  is  founded 


Bailey  vs.  Capelle.  449 

on  a  covenant  in  a  lease;  and  being  an  action  sounding  in  damages 
is  excluded  from  the  jurisdiction  of  a  justice  of  the  peace.  Second. 
Because  the  deft,  below  failing  to  appear  pursuant  to  the  adjourn- 
ment of  the  cause,  the  justice  gave  judgment  against  the  deft,  in  his 
absence  without  hearing  the  allegations  and  proofs  of  the  plff. 

By  the  Court.  The  act  of  assembly  requires  that  before  giving  a 
judgment  by  default,  the  justice  shall "  hear  the  proofs  and  allegations 
of  the  plff."  (Dig.  334,  sec.  5 ;)  and  he  ought  so  to  state  on  the  docket; 
but  when  it  appears  from  the  record  that  he  did  examine  the  case  on 
the  proofs  and  allegations,  the  court  will  sustain  his  judgment  though 
he  omit  to  state  the  facts  on  the  record.  He  has  sent  up  the  cause  of 
action  in  this  case  which  itself  exhibits  proof  of  the  payment  by 
Stoops  for  peach  trees  for  deft.'s  farm.  The  statement  indeed  shows 
that  the  contract  under  which  these  trees  were  furnished,  grew  out 
of  a  lease,  but  it  does  not  therefore  necessarily  follow  that  the  jus- 
tice had  no  jurisdiction.  If  the  lease  was  not  under  seal,  assumpsit 
might  lie  for  money  paid  by  Stoops  to  the  use  of  Colesberry;  and  we 
think  that  even  an  action  of  covenant  would  lie  in  some  cases  before 
a  justice  of  the  peace  under  the  first  section  of  the  act  providing  for 
the  recovery  of  small  debts ;  Dig.  330. 

Judgment  affirmed. 

Booth,  for  defendant. 


SAMUEL  BAILEY  vs.  MAECUS  E.  CAPELLE. 

By  conaignment  the  property  passes  to  consignee. 

Bill  of  lading  proof  of  property. 

The  sheriff  is  a  trespasser  if  he  seize  the  property  of  A  on  attachment 
against  B. 

A  sale  under  such  attachment  no  evidence  of  value  in  an  action  against  the 
sheriff. 

Sheriff's  return  prima  facie  evidence. 

A  witness  having  an  equal  interest  in  either  event  of  a  suit,  is  competent. 

Consignor  competent  to  prove  property  in  consignee  when  he  has  no  disquali- 
fying interest. 

Interest  on  damages  is  discretionary  with  the  jury. 

Trespass.  Xarr.  Pleas,  not  guilty,  and  justification  under  pro- 
cess of  attachment  from  the  superior  court. 

This  was  an  action  of  trespass  against  the  sheriff  for  seizing  two 
cargoes  of  Indian  corn  claimed  to  be  the  property  of  the  plff.  It 
appeared  on  the  evidence  that  the  corn  in  question  was  purchased  in 
April,  1833,  in  the  city  of  Baltimore,  from  Tyson  &  Korris,  commis- 
sion merchants  of  that  city,  and  forwarded  to  the  plff.  at  iSTewport, 
in  this  state,  by  the  sloop  Moderator  and  schooner  Gazelle.  One, 
perhaps  both,  of  the  cargoes  were  specially  ordered  by  Bailey;  both 
were  consigned  to  him,  and  bills  of  lading  regularly  made  out  and 
forwarded;  but  before  the  corn  arrived  at  Newport  it  was  seized  by 
the  deft,  on  attachment  process  against  Tyson  &  Norris.  It  fur- 
ther appeared  that  this  corn  was  purchased  by  Tyson  &  Norris  of 
Joynes,  Bain  &  Joynes.  and  of  Jenkins  &  Jenkins,  through  their 
brokers,  Dorman  &  Ames,  on  the  23d  of  Anril,  1833.  It  was  im- 
mediately shipped  and  forwarded  to  plff.  The  sale  was  for  cash: 
Dorman  &  Ames  received  $750  in  cash  and  a  check  for  $850.     The 


450  Bailey  vs.  Capelle. 

next  day  Tyson  &  Norris  failed,  and  the  check  was  dishonored. 
Dorman  &  Ames,  having  ascertained  where  the  corn  was  sent,  came 
on  t6  this  state  and  sued  out  attachments  in  the  name  of  Joynes, 
Bain  &  Joynes,  and  of  Jenkins  &  Jenkins,  against  Tyson  &  Norris, 
upon  which  attachments  the  sheriff,  seized  the  corn  on  its  passage  up 
the  Christiana  river,  and  before  it  reached  the  plff.  Being  perishable 
property,  it  was  sold  under  an  order  of  court  made  at  the  May  term, 
1833. 

Mr.  Rogers,  for  deft,  was  about  to  read  the  return  on  this  order, 
which  was  objected  to. 

Mr.  Bayard.  The  return  of  a  sheriff  is  evidence  between  third 
persons,  but  not  for  himself.  He  cannot  make  evidence  for  himself. 
It  is,  moreover,  irrelevant.  If  the  attachment  is  a  sufficient  justifi- 
cation, the  value  of  the  goods  is  of  no  consequence;  if  not,  the  sale  is 
the  act  of  a  trespasser,  which  can  afford  no  measure  of  value  in  an 
action  against  him  for  the  trespass, 

Rogers.  The  sale  was  made  under  an  order  of  court,  and  was  an 
oflBcial  act  of  the  deft,  as  sheriff.  Even  if  he  was  a  trespasser  in  seiz- 
ing the  goods,  he  was  not'  so  in  making  the  sale.  It  was  made  as  a^ 
public  officer  by  virtue  of  lawful  authority,  and  is  a  proper  measure 
of  value. 

The  court  inclined  to  the  opinion  that  the  return  of  a  sheriff  is 
prima  facie  evidence  of  the  facts  properly  stated  in  it,  even  in  a  suit 
against  himself;  (Roscoe  on  Ev.  305;/  but  as  a  measure  of  value  it 
cannot  apply  here,  for  if  the  sheriff  was  a  trespasser,  the  seizure, 
and  not  the  sale,  was  the  trespass,  and  the  value  of  the  property  at 
the  time  and  place  of  seizure  would  be  the  measure  of  damages,  and 
not  its  value  at  the  time  and  place  of  sale.  The  return  only  professes 
to  show  the  latter. 

The  deposition  of  Lloyd  Norris,  of  the  firm  of  Tyson  &  Norris, 
was  offered  by  the  plff.  to  prove  that  the  corn  was  purchased  on  com- 
mission for  Bailey,  in  pursuance  of  orders  received  from  him.  Ob- 
jected to. 

Rogers.  The  witness  is  interested  in  establishing  a  sale  to  Bailey 
and  to  defeat  the  attachments. 

Latimer.  He  is  not  interested  in  the  event  of  the  suit.  The  ob- 
jection goes  only  to  his  credit,  and  not  to  his  competency.  The  ver- 
dict could  not  be  given  in  evidence  either  for  or  against  him  in  any 
other  action.    He  is  not  bound  even  for  costs. 

Rogers.  Suppose  a  recovery  in  this  action.  Tyson  and  Norris 
will  be  entitled  to  demand  and  receive  of  the  plff.  the  price  of  the 
com.  If  there  should  be  no  recovery,  Bailey  will  not  be  liable  to 
them,  for  the  attachment  will  be  a  sufficient  defence  to  any  suit 
against  him. 

The  Court  said  the  interest  of  the  witness  was  equal  "both  ways. 
If  the  plff.  recovers,  the  price  of  the  corn  will  go  to  the  assignees  of 
Tyson  and  Norris ;  if  he  fails,  it  will  go  to  their  attaching  creditors ; 
either  way  it  is  applied  to  the  pajrment  of  their  debts ;  and  they  have 
no  disqualifying  interest,  though  they  may  have  a  bias  or  feeling  as 
to  which  of  the  creditors  shall  he  benefitted  by  it. 


Bailey  vs.  Capelle.  451 

It  was  insisted  on  the  part  of  the  plff.  that  a  delivery  to  a  common 
carrier  or  master  of  a  vessel  was  a  delivery  to  the  consignee,  subject 
only  to  the  right  of  stoppage  in  transitu  where  that  right  could  be 
properly  exercised:  that  a  general  consignment  of  property  vests  the 
property  in  the  consignee:  that  it  made  no  difference  whether  the 
property  was  paid  for  or  not.  1  Ld.  Raymd.  271;  3  Bos.  &  Pul. 
584;  1  Johns.  Rep.  15;  3  P.  Wm.'s.  185.  Plff.  claimed  damages 
to  the  value  of  the  corn  and  interest,  costs  and  expenses  in  prosecuting 
his  suit,  and  also  special  damage  for  the  stopping  of  his  mill  in  con- 
sequence of  having  a  supply  of  grain  cut  off  by  these  attachments. 
[Note.  This  special  damage  was  laid  in  the  narr.] 

On  the  part  of  the  deft,  it  was  contended  that  the  bill  of  lading, 
though  prima  facie,  was  not  conclusive  evidence  of  property  in  the 
consignee:  (5  Com.  Laiv  Rep.  283;  Sergeant  vs.  Morris;  3  Stark. 
1620;  1  Camp.  85;)  that  it  appeared  to  have  been  Bailey's  undeo"- 
standing  that  he  was  to  pay  for  the  grain  only  on  delivery;  and  that 
he  had  in  fact  ordered  but  one  of  the  cargoes  to  be  sent  on  to  him. 

Harrington,  Justice,  charged  the  jury:  That  the  question  for 
them  to  consider  was,  whether  these  two  cargoes  of  corn  were,  at  the 
time  of  the  seizure,,  the  property  of  Samuel  Bailey,  the  consignee,  or 
of  Tyson  &  Norris:  that  they  need  not  regard  the  transaction  as  be- 
tween Tyson  &  Norris  and  Joynes,  Bain  and  Joynes  and  the  other 
attaching  creditors.  If  these  delivered  their  grain  to  Tyson  &  ISTo^r- 
ris  on  a  cash  sale  without  receiving  the  money,  they  enabled  them  to 
transfer  the  property  to  another  in  any  bona  fide  transaction,  and  the 
present  question  was,  whether  it  had  been  so  transferred  before 
attachment.  That  the  consignment,  if  fairly  and  regularly  made, 
passed  the  property  to  the  consignee,  and  it  could  not  afterwards  be 
lawfully  seized  as  the  property  of  the  consigners.  That  it  did  not 
alter  the  case  though  the  corn  had  not  been  paid  for,  or  had  not  been 
specially  ordered.  It  was  the  habit  of  plff.  to  receive  large  ship- 
ments of  grain  from  these  commission  merchants,  and  though  only 
one  of  these  cargoes  may  have  been  specially  ordered,  about  which 
there  was  some  doubt,  if  he  chooses  to  accept  the  consignment,  the 
property  is  his  and  he  will  be  liable  for  the  value  to  the  consignors 
or  their  assignees.  That  the  damage  was  the  value  of  the  grain  at 
the  time  and  place  of  seizure,  deducting  freight ;  and  any  special  dam- 
age proved  on  account  of  the  plff.'s  mill  being  stopped  by  the  seiz- 
ure.  .  It  is  in  the  discretion  of  the  jury  to  give  or  withhold  interest. 

Verdict  for  plff.  $2,648  13. 

Latimer  and  J.  A.  Bayard,  for  plaintiff, 

Rogers,  for  defendant. 


452  Gibbons  vs.  !Mason. 

JOHX  KICE  vs.  GEORGE  W.  MOORE. 

A  writes  to  a  justice  that  he  is  willing  to  enter  security  for  a  judgment  recov- 
ered before  him  against  B  —  no  action  can  be  founded  on  such  a  premise 
before  a  justice. 

Every  suretyship  must  be  signed. 

Certiorari  to  Justice  McCaulley. 

Record.  "Action  on  assumpsit  —  demand,  $22  45,  to  wit:  'Sep- 
tember 22,  1832.  William  McCaulle)',  Esq.  Sir:  I  have  no  ob- 
jections to  enter  as  security  for  Luke  Spenser  to  the  amount  of 
twenty  dollars,  as  I  understand  you  have  a  judgment  against  him  to 
that  amount.  Your  obedient  servant, 

(Signed)  George  W.  Moore.' " 

The  action  was  upon  the  above  assumption;  the  summons  was 
regularly  served  and  returned;  and  after  verifying  the  service  by  the 
oath  of  the  constable,  the  justice  proceeded  to  hear  the  cause  in  the 
absence  of  the  deft,  and  gave  judgment  against  him  by  default. 

The  exceptions  were  —  First.  That  the  record  showed  no  cause  of 
action.    Second.  That  the  justice  had  not  jurisdiction  of  the  case. 

By  the  Court.  The  letter  of  Moore>  which  is  set  forth  as  the  cause 
of  action,  is  not  an  assumption,  but  a  promise  to  become  surety  that 
the  judgment  against  Spenser  should  be  paid.  He  is  not  liable  upon 
it  as  an  actual  entry  of  security;  for  such  entry  must  be  on  the  jus- 
tice's docket  and  signed  by  the  surety.  Dig.  338,  5,  13.  The  deft, 
is  liable  on  this  letter  for  a  failure  to  become  bound  as  surety;  but 
such  an  action  is  not  within  the  jurisdiction  of  a  justice  of  the  peace. 

Judgment  reversed. 

Wales,  for  defendant. 


HENRY  GIBBONS,  Jr.  vs.  PARK  MASON. 

Constable's  return  must  show  whether  the  service  was  personal,  or  by  leaving 

a  copy  at  deft.'s  house. 
It  need  not  state  all  the  requisites,  but  if  it  shows  that  any  of  them  were  not 

observed,  it  will  be  bad. 
Service  by  leaving  a  copy  at  the  deft.'s  office  is  not  a  good  service. 

Certiorari. 

Summons  issued.  Constable  returns  —  "  Summoned  by  copy  left 
at  the  deft.'s  office."  Judgment  by  default,  the  constable  having 
verified  the  service  by  making  oath  "  that  he  did  duly  serve  this 
warrant  in  the  manner  set  forth  in  the  note  of  service  indorsed." 

Exception.  That  the  service  of  the  summons  was  not  made  accord- 
ing to  law. 

Richard  H.  Bayard,  for  plff.  Non  constat  that  the  office  is  not 
a  part  of  the  deft.'s  house,  and  the  constable  having  sworn  that  he 
duly  served  the  process,  it  will  be  taken  to  be  so,  unless  the  con- 
trary appear.  If  the  office  be  distinct  from  the  deft.'s  place  of  abode, 
it  should  be  shown  by  the  other  side.  All  the  requisites  of  the  ser- 
vice need  not  be  stated  in  the  return.    "  Service  by  copy  "  would  be 


DoNELY  VS.  McGraxx  AND  McClay.  453 

a  good  return,  because  it  would  be  construed  to  mean  that  the  ser- 
vice was  by  leaving  a  copy  at  the  deft.'s  place  of  abode  in  the  pres- 
ence of  one  or  more  of  the  family  or  neighbors,  as  the  law  directs. 
Dig.  331.  5.  3. 

Hamilton.  The  law  requires  a  service  at  the  dwelling-house  in 
a  certain  manner.  This  return  shows  a  different  service;  a  service 
at  the  office.  The  oath  does  not  help  the  case,  because  it  is  merely 
that  the  service  was  duly  made  in  the  manner  indorsed. 

The  Court.  The  act  requires  that  notice  should  be  left  at  the 
dwelling-house  of  the  deft,  in  the  presence  of  some  member  of  his 
family  or  neighbors.  It  is  a  wise  provision  to  insure  notice  to  the 
party  before  a  judgment  by  default  shall  bind  him.  Here  the  ser- 
vice was  at  an  office,  a  place  where  the  family  do  not  usually  reside. 
The  constable  need  not  state  in  his  return  that  all  the  requisites  to  a 
legal  service  were  observed;  but  if  he  states  any  thing  which  shows 
that  the  service  was  not  regular,  the  judgment  cannot  be  sustained. 

Judgment  reversed. 

R.  H.  Bayard,  for  plaintiff. 

Hamilton,  for  defendant. 


HUGH  DONELY  vs.  JOHX  McGEANX  and  JOSEPH  McCLAY. 

PajTiient  of  rent  may  be  proved  by  parol,  though  there  was  a  receipt  given. 

On  attachment  against  an  absconding  debtor,  there  need  not  be  a  second  ap- 
praisement. 

Judgment  in  replevin  is  for  the  sum  found  due  as  debt,  and  the  value  of  the 
property  destrained  need  not  be  found. 

Eeplevin, 

The  deft.  McClay  made  cognizance  as  bailiff  for  McGrann,  who 
avowed  the  taking  as  a  distress  for  twelve  dollars  rent  in  arrear  on 
the  25th  September,  1833.  Pleas,  non  tenuit,  nil  habuit  in  tene- 
mentis,  no  rent  in  arrear,  and  payment  to  ground  landlord.  Repli- 
cations and  issues. 

Charles  Connel,  being  possessed  of  a  small  tenement,  divided  into 
two  parts,  on  a  ground  lease  of  $8  00  per  annum,  demised  the  south 
end  to  Hugh  Donely  for  one  year  from  the  25th  March,  1833,  at 
$24  00  per  year,  payable  quarterly.  On  the  fourth  of  May  follow- 
ing, Connel  assigned  all  his  interest  in  the  premises  to  John  Mc- 
Grann, one  of  the  defts.  By  an  arrangement  between  McGrann 
and  Hugh  Donely,  the  latter  removed  from  the  south  to  the  north 
end  of  the  building,  at  the  same  rent  and  on  the  same  terms.  On 
the  sixth  of  May,  1833,  an  attachment  was  issued  by  a  justice  of  the 
peace,  at  the  suit  of  Robinson,  Carr  &  Co.  against  Charles  Connel  as 
an  absconding  debtor,  which  was  levied,  on  the  seventh  of  May,  on 
the  said  house,  and  an  appraisement  regularly  made.  Judgment  was 
afterwards  obtained  on  the  attachment,  and  an  execution  issued  on 
the  tenth  July,  1833,  under  which  the  house  was  sold  to  Robinson, 
Carr  &  Co.  for  $55.  Donely  afterwards  attorned  to  Robinson,  Carr 
&  Co.  and  paid  them  the  rent.  He  also  paid  the  ground  landlord 
and  took  receipts.     He  offered  parol  evidence  to  prove  the  amount 


454  Chandler  and  others  vs.  Ferris. 

paid  to  the  ground  landlord,  which  was  objected  to,  as  it  wae  shown 
there  were  receipts. 

The  Court  said  that  parol  evidence  of  the  pa3anent  of  money  may 
be  given  by  a  witness  who  actually  saw  it  paid,  though  there  be  a 
receipt.    3  Stark.  Ev.  1055,  note. 

The  plff.  in  replevin  contended  —  That  the  distress  was  illegally 
taken:  the  demise  was  for  the  south  end  of  the  house,  and  the  narr 
and  avowry  were  for  rent  due  for  the  north  end,  where  the  taking 
was.  That  the  assignment  from  Connel  to  McGrann  of  fourth  May 
was  fraudulent,  being  but  two  days  before  the  attachment,  and  on 
the  eve  of  absconding.  That  the  payment  to  ground  landlord  was 
a  good  defence. 

Bayard  replied  —  That  the  attachment  of  Bobinson,  Carr  &  Co. 
could  give  them  no  title,  as  it  was  after  the  assignment;  nor  was  it 
regular,  as  there  was  no  inventory  and  appraisement,  which  the  la\v 
requires.  [Note.  There  was  an  appraisement  on  the  attachment  he- 
fore  judgment ;  Mr.  Bayard  insisted  there  must  be  a  second  one  after 
judgment  and  before  sale,  which  the  court  thought  not  necessary. 
Dig.  348,  sec.  32.]  Second.  That  the  distress  was  right,  as  there 
was  a  change  from  the  south  to  the  north  end  of  the  house  with  the 
full  consent  of  all  parties.     This  constituted  a  new  letting. 

The  Court  left  it  to  the  jury  —  First.  Whether  there  was  sufficient 
evidence  to  prove  a  demise  in  the  north  end;  and  second,  whether 
they  were  satisfied  that  the  assignment  of  Connel  to  McGrann,  of 
fourth  May,  1833,  was  a  bona  fide  transaction. 

Verdict  for  avowant,  defts.  in  replevin. 

The  question  arose  on  the  return  of  the  jury,  whether  it  was  neces- 
sary to  find  the  value  of  the  property  distrained.  The  court  said 
that,  though  formerly  otherwise,  the  present  act  of  assembly  made  it 
unnecessary.  The  condition  of  the  replevin  bond  is  to  satisfy  the 
judgment,  whatever  it  may  be,  and  not  merely  to  the  extent  of  the 
property  distrained.  Dig.  264,  365.  The  judgment  is  to  be  given 
for  the  sum  found  due,  as  debt,  with  costs,  &c. 

R.  H.  Bayard,  for  avowant. 
Wales,  for  Donely. 


JESSE  CHANDLER  and  others  vs.  BENJAMIN  FERRIS. 

Sound  and  disposing  mind  and  memory,  what  is  it? 

What  degree  of  influence  will  vitiate  a  will. 

If  in  drawing  out  a  will  from  instructions  they  be  materially  departed  from, 
the  jury  must  be  satisfied  that  the  testator  knew  of  the  deviations. 

Testimony  will  not  be  admitted  in  reply  which  might  have  been  adduced  on  the 
examination  in  chief. 

The  party  which  has  the  burthen  of  proof  is  entitled  to  the  opening  and  con- 
clusion. 

On  an  issue  of  devisavit  vel  non  the  caveators  have  the  onus. 

Issue  from  the  register  sent  to  try  the  question  "  whether  the  paper 
writing  purporting  to  be  the  last  will  and  testament  of  Thomas 
Chandler  dec'd.,  is  or  is  not  the  last  will  and  testament  of  Thomas 
Chandler  dec'd." 


Chandler  and  others  vs.  Ferris.  455 

The  will  in  question  bore  date  th6  24th  May,  1833,  and  was  made 
when  the  testator  was  m  his  73d  year  of  age.  It  was  in  the  hand 
writing  of  Benjamin  Ferris,  who  was  constituted  an  executor  and 
trustee  as  hereafter  mentioned.  It  contained  a  great  number  of 
small  bequests,  amounting  in  the  whole  to  about  seventeen  thousand 
dollars,  most  of  which  were  to  the  testator's  relatives;  and  it  then 
disposed  of  the  rest  and  residue  of  his  estate,  real,  personal  and 
mixed,  in  the  following  manner. 

"  And  whereas  it  hath  frequently  occurred  to  my  mind  that  the 
African  race  or  descendants  of  African  natives  in  the  United  States, 
are  in  a  deplorable  degraded  condition^  and  considering  that  neither  the 
federal  government  nor  any  other  institution  has  made  adequate  pro- 
vision for  their  improvement  in  education,  morals  and  industry  I  have 
thought  that  a  great  and  permanent  benefit  might  accrue,  not  only  to 
that  people  but  to  the  white  population  of  our  country,  if  a  founda- 
tion could  be  laid,  though  in  a  small  way,  of  a  fund  to  be  appropri- 
ated to  the  promotion  of  these  important  ends.  With  the  hope  therefore 
that  benevolent  individuals  who  may  survive  me,  may  be  disposed 
to  aid  in  this  concern,  and  contribute  towards,  its  accomplishment, 
until  a  fund  may  be  raised  sufficient  to  commence  an  institution  to 
carry  into  effect  the  views  before  expressed,  so  far  at  least  as  to  edu- 
cate male  children  of  the  African  race,  so  as  to  render  them  useful 
to  themselves  and  the  community  by  a  course  of  instruction  in  mor- 
als, science  and  productive  employment,  agricultural,  mechanical  or 
otherwise;  I  do  hereby  give,  devise  and  bequeath  to  John  Clark,  now 
of  the  city  of  Wilmington,  in  the  State  of  Delaware,  Benjamin 
Ferris  and  Eli  Hilles  of  the  same  place,  David  Wilson,  of  Hockes- 
sing,  in  the  State  aforesaid,  Jacob  Heald  and  Haines  Jackson,  of  the 
same  place  and  Bennet  Jefferis,  of  Christiana  hundred  in  the  State 
afs'd.  all  the  rest  and  residue  of  my  estate,  real,  personal  and  mixed 
or  of  whatever  kind  the  same  may  be  not  herein  otherwise  disposed 
of  in  trust,  nevertheless,  that  they  the  said  John  Clark,  B.  F.,  E. 
H.,  D.  W.,  J.  H.,  H.  J.  and  B.  Jefferis  and  the  survivor  of  them 
and  their  successors  appointed  as  herein  after  directed,  shall  faithfullv 
appropriate  and  apply  the  said  residue  of  my  estate  or  the  proceeds 
thereof,  to  the  purpose  afs'd.  and  to  no  other.  And  in  order  to  carry 
into  effect  the  object  of  this  devise  and  bequest,  I  do  hereby  author- 
ize and  empower  my  executors  herein  after  mentioned,  to  sell  any 
real  estate  which  I  inay  own  at  the  time  of  my  decease,  included  in 
the  residue  of  my  estate  as  afs'd.,  and  by  a  good  and  sufficient  deed  or 
deeds  of  conveyance  duly  executed  and  acknowledged,  to  grant  and 
confirm  to  the  purchaser  or  purchasers  thereof,  all  my  estate,  right, 
title  and  interest  in  the  same,  as  fully  and  effectually  as  I  myself  could 
now  do,  and  1  do  hereby  direct  my  said  executors  to  pay  over  to  my 
trustees  herein  named,  the  net  proceeds  of  all  such  sales  to  be  by 
them  appropriated  as  herein  before  directed. 

And  in  order  to  prevent  any  failure  of  the  trust  committed  to  the 
said  John  Clark,  B.  F.  &c.,  I  do  hereby  authorize  and  empower  them 
and  their  successors  and  a  majority  of  them  and  their  successors  for- 
ever, upon  the  death,  removal  out  of  the  State,  refusal  to  serve  or 
total  neglect  of  any  one  or  more  of  the  said  trustees  or  of  their  suc- 
cessors to  appoint  another  or  others  to  fill  his  or  their  places,  and  the 


i5€  CHANDJ.ER  AND  OTHKBS  VS.  FeRRIS. 

person  or  persons  so  appointed  shall  have  and  exercise  all  the  power 
and  authority  which  is  hereby  delegated  to  any  one  or  an  equal  num- 
ber of  the  trustees  herein  before  particularly  named. 

And  it  is  my  will  and  I  do  hereby  direct  that  all  the  estate  or  pro- 
ceeds of  the  estate  hereby  given  in  trust  to  my  trustees  herein  before 
named  and  to  their  successors,  shall  be  as  far  as  practicable  kept  out 
upon  interest  or  so  invested  as  to  be  productive,  and  that  all  the 
interest  or  net  proceeds  arising  from  dividends  on  stocks  or  other 
investments  shall  be  from  time  to  time  added  to  the  estate  hereby 
devised  or  bequeathed,  during  the  space  of  seven  years  after  my 
death,  if  the  principal  shall  so  long  remain  unappropriated  in  the 
manner  aforesaid. 

And  it  is  further  my  will  and  a  condition  of  the  afs'd.  devise  and 
bequest  to  my  trustees  as  afs'd.  that  the  estate  so  given  to  them  in 
trust  shair  be  appropriated  and  applied  to  the  uses  and  purposes  afs'd. 
w^ithin  seven  years  after  my  decease;  and  if  within  that  time  no  such 
institution  shall  be  established  or  commenced,  and  no  other  funds 
raised  for  the  purposes  of  such  establishment,  then  and  in  such  case 
all  the  said  residue  of  my  estate  shall  go  to  and  be  equally  divided 
among  all  the  children  of  my  nephews  and  nieces  and  their  legal  rep- 
resentatives^ share  and  share  'alike,  and  I  do  hereby  give  and 
bequeath  tlie  same  to  them  accordingly,  to  hold  the  same,  to  them  and 
to  their  heirs  and  assigns  forever.  Excepting  nevertheless  out  of 
such  bequest  the  sum  of  five  hundred  dollars,  part  of  the  said  residue, 
which  I  do  hereby  give  and  bequeath  to  the  African  school  society 
of  Wilmington,  incorporated  by  the  Legislature  of  the  State  of  Del- 
aware, for  the  purpose  of  instructing  the  descendants  of  the  people 
of  Africa, —  the  same  to  be  paid  to  the  said  society  on  failure  of  the 
said  institution  and  not  otherwise. 

And  as  it  may  be  useful  and  proper  that  I  should  express  my  mind 
in  relation  to  the  plan  of  the  institution  proposed,  I  hereby  add  an 
outline  of  such  plan  as  appears  to  me  most  likely  to  attain  the  object 
of  my  concern. 

First.  That  a  tract  of  land  should  be  purchased  sufficiently  remote 
from  any  city,  town  or  village,  to  prevent  all  improper  intercourse 
between  the  resident  pupils  and  every  person  connected  with  the 
institution. 

Second.  That  commodious  and  substantial  buildings  be  erected 
thereon  for  the  accommodation  of  the  pupils  and  officers  of  the  insti- 
tution, and  for  workshops,  barns,  stables  and  for  other  purposes. 

Third.  That  children  should  be  admitted  at  seven  years  of  age 
and  older,  as  pupils  from  any  section  of  the  United  States,  but  those 
from  the  State  of  Delaware  to  have  the  preference  in  all  cases  when 
it  may  be  necessary  from  the  state  of  the  school  to  make  a  choice. 

Fourth.  When  pupils  arrive  at  fourteen  years  of  age,  having  had 
a  competent  share  of  learning  to  fit  them  for  business,  they  should 
be  permitted,  if  they  so  choose,  to  be  apprenticed  to  suitable  persons 
at  the  discretion  of  the  managers,  to  learn  trades,  agriculture  or  other 
business,  in  which  they  may  be  useful  to  the  community  and  of 
advantage  to  themselves  —  otherwise  they  may  at  the  discretion  of 
the  managers,  be  kept  on  the  farm  or  in  the  workshops  under  the  care 
of  the  institution,  until  they  arrive  at  the  age  of  twenty-one  years. 


Chandler  and  others  vs.  Ferris.  4o7 

Fifth.  The  pupils  should  be  maintained  and  educated  without 
other  charge  or  compensation  than  their  own  labor,  and  should  be 
found  in  food  and  good  plain  clothing  during  their  residence  in  the 
institution. 

Sixth.  The  course  of  instruction  should  include  reading,  writing, 
arithmetic  and  English  grammar  —  and  where  inclination  and  ca- 
pacity on  the  part  of  the  pupils  are  manifest,  the  course  of  instruction 
should  extend  to  the  higher  branches,  particularly  those  that  may  be 
most  useful  in  practice,  such  as  navigation,  surveying  and  the  neces- 
sary preliminary  acquirements. 

Seventh.  The  managers  should  have  power  of  course  to  discour- 
age all  improper  conduct  on  the  part  of  the  pupils,  and  to  encourage 
them  in  their  pursuits  and  for  good  behavior,  by  dismissal  or  pun- 
ishment in  the  former  case  and  by  rewards  or  promotion  in  the  latter. 

Eighth.  The  farm  ought  to  be  managed  in  the  best  manner,  and 
according  to  the  most  approved  system  of  agriculture,  so  as  to  be 
a  proper  model  or  pattern  for  others.  All  the  labor  should  be  per- 
formed by  the  students,  which  should  be  so  regulated  that  each  pupil 
should  do  his  proper  share  of  labor  and  have  his  fair  proportion  of 
literary  instruction  daily. 

Ninth.  As  the  funds  and  resources  of  the  institution  may  author- 
ize, workshops  should  be  built  and  mechanics  employed  to  teach  the 
pupils  in  their  several  branches,  such  as  smiths,  shoemakers,  cabinet- 
makers, turners,  &c.,  seeing  that  the  elevation  of  this  class  of  people 
much  depends  on  their  usefulness  as  members  of  the  community. 

Tenth.  Each  pupil  on  admission  into  the  institution,  should  come 
under  written  obligations  to  remain  under  the  government  of  the  offi- 
cers or  superintendents  of  the  establishments,  and  to  comply  with 
such  instructions  as  may  be  given  them.  And  it  might  be  advan- 
tageous and  proper  to  have  legislative  authority  to  bind  them  out 
under  the  age  of  twenty-one  years,  to  such  persons  as  might  be  suit- 
able, in  order  to  attain  the  objects  in  view  as  before  expressed. 

And  I  desire  that  at  no  time  more  than  two  of  the  trustees  in 
future  to  be  appointed,  should  be  resident  in  the  city  of  Wilmington 
or  any  other  town  —  at  least  five  in  number  should  always  be  inhab- 
itants of  the  country." 

And  he  appointed  Amor  Hollingsworth,  Jesse  Gregg  and  Benja- 
min Ferris,  executors. 

The  estate  amounted  to  between  thirty  and  forty  thousand  dollars. 

Latimer  for  deft,  produced  the  will  and  proved  its  formal  execu- 
tion by  Samuel  Smith,  the  surviving  testamentary  witness.  The 
execution  took  place  at  the  house  of  Benjamin  Ferris,  who  was  a 
scrivener  by  profession.  This  witness  gave  a  very  decided  opinion 
as  to  the  sanity  of  the  testator.  The  idea  had  never  occurred  to  him, 
nor  had  he  ever  heard  it  suggested  by  another,  previous  to  the  death 
of  Thomas  Chandler,  that  he  was  not  a  man  of  sound  mind. 

Bayard,  then  opened  on  the  part  of  the  caveators,  stating — 
That  he  should  controvert  the  validity  of  this  will  on  the  ground  of 
incompetency  in  the  testator  from  general  weakn.ess  of  intellect,  ope- 
rated upon  by  the  improper  influence  and  control  of  others.    It  would 
appear  to  be  the  case  of  a  verv  old  man  living  upon  good  terms  with 

58 


458  Chandler  and  others  vs.  Ferris. 

his  family  connexions,  towards  whom  he  had  always  manifested 
great  kindness  and  affection,  disposing  of  a  large  property,  to  the 
exclusion  of  those  relatives,  towards  a  cla^s  of  people  who  had  in 
his  better  days,  been  objects  of  his  marked  aversion,  and  towards  an 
object  which  itself  presented  strong  evidence  of  insanity.  That 
though  he  was  a  man  of  pretty  strong  mind  on  some  subjects,  he  was 
subject  to  periods  of  depression  amounting  almost  to  insanity;  that 
he  was  often  afflicted  by  a  kind  of  monomania  first  on  one  subject 
and  then  on  another;  and  that  weakened  as  he  was  by  age  and  dis- 
ease, in  the  course  of  which  he  had  had  several  attacks  of  palsy,  he 
was  peculiarly  subject  to  the  management  of  others.  That  the  deft, 
acted  on  this  occasion  as  the  counsellor  of  the  testator;  and  by  lead- 
ing his  mind  to  an  object  which  he  and  other  members  of  the  anti- 
slavery  society  had  at  heart,  exercised  over  him  an  undue  influence, 
and  made  him  substitute  their  own  will  for  his.  Under  these  circum- 
stances the  plffs.  would  insist  that  although  the  extremely  weak  and 
vacillating  state  of  mind  which  they  would  prove  the  testator  to  have 
been  under  might  not  amount  to  actual  insanity,  there  was  a  degree 
of  influence  exercised  over  him,  and  a  direction  given  to  a  mind  natu- 
rally tending  to  insanity  which  ought  to  satisfy  the  jury  that  in  this 
act  TTiomas  Chandler  did  not  exercise  a  sound  and  disposing  mind. 

During  the  examination  of  plff.'s  witnesses,  the  following  letter 
was  produced  by  the  deft,  at  the  request  of  the  other  side,  and  read 
in  evidence  by  them  with  a  view  to  show  the  extent  of  influence 
exerted  over  testator's  mind. 

Copy  of  a  letter  from  William  Lloyd  Garrison,  editor  of  the  Lib- 
erator, to  Benjamin  Ferris. 

The  first  page  contained  printed  "  proposals  for  establishing  a 
school  on  the  manual  labor  system  for  the  education  of  colored  youth,'* 
and  a  printed  plan  for  such  school,  in  substance  similar  to  the  one 
contained  in  Chandler's  will.    The  manuscript  was  as  follows: 

"  Boston,  Feb.  16,  1833. 
Respected  Friend: 

I  presume  the  enclosed  plan  for  the  establishment  and  government 
of  the  manual  labor  school  for  colored  youth  will  be  acceptable  to 
you  and  your  benevolent  friend.  The  managers  of  the  anti-slavery 
society  deem  it  unnecessary  to  urge  upon  either  of  you  the  impor- 
tance and  need  of  the  contemplated  school.  It  is  desirable  that  what- 
ever is  done,  should  be  done  speedily.  Subscrintions  have  been 
commenced,  in  this  quarter,  under  very  favorable  circumstances. 
Your  friend,  we  trust,  will  add  his  name  to  the  list  of  donors. 

We  are  cheered  in  view  of  the  progress  of  the  anti-slavery  cause 
in  this  country.  The  example,  so  long  given  by  the  society  of 
friends,  is  beginning  to  have  its  legitimate  influence. 

Your  humble  friend, 

Wm.  Lloyd  Garrison. 

Benjamin  Ferris." 

The  plffs.  having  closed  their  testimony  in  chief :  — 

Latimer  opened  the  defence  in  support  of  the  will,  and  examined 
a  number  of  witnesses  on  the  subject  of  the  testator's  sanity.  He 
also  read  in  evidence  the  instructions  given  by  Thomas  Chandler  to 
Benjamin  Ferris  for  drawing  his  will.     This  paper  was  in  the  hand 


Chandler  and  others  vs.  Ferris.  459 

writing  of  Thomas  Chandler.  That  part  of  it  which  relates  to  the 
residue  of  his  estate  was  in  the  following  words :  — 

"  Whereas  it  has  frequently  revived  in  my  mind  for  a  considerable 
time,  the  degraded  and  deplorable  situation  and  condition  of  the  Af- 
rican race  that  is  unhappily  introduced  amongst  us,  and  considering 
that  government,  nor  any  other  institutions,  make  no  provisions  for 
their  improvement  in  their  education,  morals  or  industry :  Therefore 
I  have  thought  that  it  might  be  an  advantage  to  them  to  lay  a  founda- 
tion (in  a  small  way)  of  a  fund  for  the  abovesaid  purposes,  with  a 
sincere  hope  that  some  philanthropists  may  feel  disposed  to  add 
thereto  until  it  amounts  to  a  sum  suthcient  to  be  put  into  operation 
for  the  education  of  the  youth  of  that  description  so  as  to  render  them 
useful  to  themselves  and  to  the  community.  Therefore  I  give  and  be- 
queath the  reversions  and  remainder  of  my  estate  not  otherwise  dis- 
posed of,  for  the  express  purpose  of  purchasing  a  plantation  or  tract 
of  land  in  a  remote  part  of  the  countr)^,  not  near  any  city,  town  or 
village,  large  enough  to  support  in  good  degree,  the  institution  by 
their  industry. 

The  scholars  shall  be  instructed  in  various  branches  of  a  sound  and 
plain  education,  comprehending  reading,  writing,  grammar  and  arith- 
metic, so  as  to  enable  them  to  transact  common  occurrences  of  busi- 
ness, if  their  capacity  will  admit  of  it.  The  farm  to  be  cultivated 
in  the  most  advantageous  manner  for  the  support  of  the  institution 
—  the  scholars  to  work  on  the  farm  one  half  of  the  day  when  they 
can  be  employed  advantageously,  or  at  some  mechanick  trades,  any 
such  as  will  clear  their  way  or  expenses,  and  the  half  in  the  school. 

But  if  no  such  institution  shall  be  founded  within  seven  years  from 
the  time  of  my  decease,  then  I  give  tlie  said  residue  to  all  the  chil- 
dren of  my  nephews  and  nieces  equally,  except  500  dollars  to  Afri- 
can school  society." 

The  deft,  here  rested  his  case. 

Joseph  Baily,  was  called  as  a  witness  on  the  part  of  the  caveators 
and  asked  in  relation  to  the  testator's  general  state  of  mind  and 
bodily  health. 

The  testimony  was  objected  to  as  not  being  strictly  in  reply. 

The  Court  said  that  witnesses  might  now  be  examined  to  contra- 
dict or  explain  any  facts  stated  on  the  other  side,  but  not  generally 
as  in  the  previous  examination.  The  caveators  commenced  (after  the 
formal  proof  of  the  will)  by  a  general  examination  tending  to  show 
the  insanity  of  the  testator;  or  that  he  had  been  subjected  to  an  undue 
influence  in  making  his  will.  The  other  side  replied  at  length  as  to 
these  matters:  Each  side  therefore  has  had  full  opportunity  in  the 
general  examination  to  bring  out  all  the  evidence  on  this  subject.  If 
either  party  were  permitted  again  to  go  into  p.  general  examination, 
the  other  would  have  a  right  to  demand  a  general  reply,  and  there 
would  be  no  end  of  the  case. 

Whereupon  both  sides  closed. 

A  question  arose  as  to  the  manner  of  conducting  the  argument  be- 
fore the  jury. 

Bayard.  This  is  a  new  question  in  this  court.  The  general  rule 
is  that  the  burthen  of  proof,  and  not  the  technical  form  of  the  plead- 
ings, gives  the  opening  and  conclusion;  1  StarJc.  Ev.  384;  8  T.  Bop. 


460  Chandler  .vnd  othkrs  vs.  Ferris. 

41)7.  Ordinarily  the  plff.  has  the  conclusion  for  the  burthen  usually 
rests  with  him.  But  when  the  pleas  are  affirmative  or  the  proof  thows 
that  the  laboring  oar  is  with  the  other  side,  the  order  of  proceed itig 
is  reversed.  The  issue  sent  here  is  in  the  usual  form,  whether  the 
instrument  in  dispute  is  the  last  will  and  testament  of  the  testator; 
and  where  the  will  is  controverted  on  the  ground  of  fraud  or  inca- 
pacity, the  proof  of  execution  is  merely  formal.  The  execution  of 
this  will  was  not  denied.  It  rests  with  us  therefore  to  avoid  it  on 
other  ground.  The  law  presumes  sanity  and  throws  it  upon  us  to 
prove  insanity  or  other  cause  for  setting  aside  the  will.  The  order 
of  proceeding  heretofore  had  in  the  cause  shows  that  by  common  con- 
sent the  laboring  oar  has  been  assigned  to  the  caveators.  They 
should  therefore  have  the  opening  and  conclusion.  And  such  was 
the  decision  in  the  late  supreme  court  in  Kent  county,  in  the  case  of 
Buckmaster's  will  and  Cubbage's  will. 

Rogers.  In  the  case  of  Orubb's  will,  in  this  county,  and  Mas- 
ten's  will  tried  before  the  present  court  in  Kent,  the  practice  was 
otherwise.  And  on  principle  it  should  be  so.  "What  is  the  question 
we  are  trying?  Whether  the  paper  writing  purporting  &c.  is  or  is 
hot  the  will  of  Thomas  Chandler.  We  affirm  that  it  is  his  will  and 
we  have  to  show  it.  The  burthen  therefore  is  with  us.  The  rule 
is  without  exception  running  through  every  description  of  action  that 
the  party  who  has  the  affirmative  of  the  issue  has  the  right  of  con- 
cluding. 

Clayton.  The  pleadings  may  sometimes  throw  the  burthen  of 
proof  without  giving  the  benefit  of  conclusion.  But  the  pleadings 
are  the  party's  own  act.  Here  the  issue  made  up  is  not  the  act  of 
the  party  but  of  the  Register;  and  the  court  will  examine  who  has 
really  the  burthen  of  proof  to  make  out.  In  Mastens  case  the  ques- 
tion was  not  raised,  and  indeed  the  state  of  facts  was  different.  The 
execution  of  the  will  was  denied.  One  of  the  testamentary  wit- 
nesses was  dead  and  the  other  very  ill  at  the  time  of  trial.  It  was 
doubtful  whether  the  execution  could  be  fully  proved.  In  Cubbage's 
case  the  question  was  made;  and  in  BncJcmaster's  case  it  was  twice 
argued,  and  the  conclusion  given  to  the  caveators. 

The  Chief  Justice  stated  his  recollection  of  the  practice.  He 
knew  of  no  decision  in  the  common  pleas  while  he  was  at  the  bar  or 
on  the  bench  in  that  court.  He  recollected  three  cases  in  the  su- 
preme court  in  which  the  opening  and  conclusion  were  given  to  the 
caveators.  He  referred  to  James  Robinson's  will;  to  Wilson  Buck- 
master's,  (a)  and  Thomas  Cubbage's  (b).    In  all  of  them  the  ques- 

(a)  John  Bell  vs.  Joseph  Buckmaster  et  al.  Supreme  Court  Kent,  1820 ; 
temp.  Johns,  chief  justice. 

Issue — "  Whether  Wilson  Buckmaster,  at  the  time  of  making  and  exe- 
cuting the  writing  of  the  seventh  January,  1819,  was  of  sound  and  dispos- 
ing mind,  memory  and  imderstanding." 

J.  M.  Clayton,  for  the  will. 

Thomas  Clayton,  for  caveators. - 

J.  M.  Clayton  asked  the  court's  opinion  who  had  the  right  to  open  and 
conclude.    The  rearister  has  made  the  executor  plaintiflF. 

Per  curiam.  "  From  the  nature  of  the  issue  the  onus  proband!  is  with  the 
deft.    The  execution  is  proved,  and  the  only  question  is  as  to  the  testator's 


Chandler  and  others  vs.  Ferris.  461 

tion  was  formally  made  and  decided.  The  issue  on  Grubb's  will  in 
this  county  was  not  argued,  and  the  question  was  therefore  not 
raised.  A  case  has  also  occurred  in  Kent,  the  only  one  in  this  court: 
the  case  of  Masten  vs.  Anderson  et  al.  where  the  executor  did  open 
and  conclude,  but  the  matter  passed  sub  silentio  and  the  regularity 
of  the  proceeding  was  not  called  in  question. 

We  are  not  to  be  governed  by  the  question  who  affirms  or  who 
denies  in  the  issue;  but  where  is  the  onus  probandi.  The  burthen 
here  is  upon  the  caveators;  they  do  not  deny  the  execution  of  the 
will,  but  set  up  insanity  and  such  an  influence  exercised  by  others 
over  the  testator's  mind  as  will  vitiate  the  will.  After  the  formal 
proof  of  the  paper,  the  executor  might  fold  his  arms  until  the  cavea- 
tors  produced  something  to  overthrow  his  case  which  is  prima  facie 
established  by  the  production  of  the  will  and  the  inference  of  law  in 
favor  of  sanity.  We  are  of  opinion  that  the  caveators  have  the  open- 
ing and  conclusion. 

Bayard,  for  caveators,  contended,  that  if  they  had  not  made  out 
a  case  of  actual  insanity,  they  had  shown  the  testator  to  be  a  man  of 
exceedingly  weak  intellect;  enfeebled  both  in  mind  and  body  by  age 
and  disease.  That  the  will  was  made  under  circumstances  of  strong 
suspicion,  without  the  knowledge  of  his  relatives,  by  a  person  who 
sustained  to  him  the  relation  of  a  counsellor  and  attorney;  a  will 
\iolating  natural  afl'ections;  contrary  to  ascertained  previous  deter- 
minations; in  favor  of  a  class  of  people  towards  whom  Thomas  Chan- 
dler was  known  to  have  entertained  antipathies,  and  for  an  object  not 
only  wild  and  visionary,  but  in  our  state  of  society  and  political  con- 
dition, wicked  in  its  character  and  dangerous  in  its  tendency.  In 
tracing  out  its  consequences,  he  read  from  a  pamphlet  published  by 
William  Lloyd  Garrison,  entitled  "  Thoughts  on  African  Coloniza- 
tion," with  a  view  of  showing  his  sentiments  and  those  of  the  anti- 
slavery  society  in  relation  to  negro  slavery.  He  read  extracts  to 
prove  —  First.  That  the  author  was  in  favor  of  the  immediate  abol- 
ishment of  slavery  in  this  country,  pp.  58,  59.  Second.  That  he 
was  not  only  for  emancipation,  but  insisted  on  remunerating  the 
slaves  for  years  of  unrequited  toil  and  labor,   &c.  p.   85.     Third. 

insanity.  The  law  presumes  sanity  until  the  contrary  is  proved.  We  are 
of  opinion  that  the  def ts.  have  the  right  to  conclude :  you  may  proceed  to 
open  as  you  please." 

The  jury,  not  beinpr  able  to  aj^ree,  was  discharged,  and  the  case  was 
tried  over  again  at  a  succeeding  term,  when  this  question  was  raised 
again  and  argued  at  some  length.     The  court  decided  as  before. 

(S)  John  Cubbage  vs.  William  Cubbage.    Issue  —  devisavit  vel  non. 

Question  made,  which  party  was  entitled  to  open  and  conclude. 

■J.  M.  Clayton,  for  caveators.  The  burthen  of  proof  is  with  us,  and  we 
have  the  conclusion.    So  decided  in  Bell  and  Buckmaster. 

Bates.  This  case  is  not  like  Buckm aster's.  Here  the  burthen  of  proof  is 
with  us.  We  admit  the  general  derangement  of  the  testator,  but  contend 
that  the  will  was  made  during  a  lucid  interval ;  and  we  are  to  prove  it. 

Per  curiam.  "  The  burthen  of  the  proof  is  with  the  plff.  who  relies  on 
insanity.  The  law  presumes  every  person  to  be  in  his  senses,  and  those 
who  controvert  the  will  must  prove  insanity.  The  plff.  is  to  open  and 
conclude." 


.  462  Chandler  and  others  vs.  Ferris. 

That  he  denied  the  legal  right  of  any  one  to  hold  a  slave.  Fourth. 
That  he  was  for  amalgamation,  pp.  145-()-7.  Fifth.  For  instruction 
and  subsequent  admission  to  all  the  trusts,  oftiees  and  honors  of  the 
republic,  p.  80.  Sixth.  And  that  he  was  for  a  negro  college,  as  the 
means  of  effecting  these  objects. 

Mr.  Bayard  insisted  that  the  jury  were  bound  to  regard  the  char- 
acter of  the  bequests  in  forming  an  opinion  of  the  sanity  of  a  testa- 
tor, and  that  a  will  might  contain  so  absurd  and  unnatural  a  disposi- 
tion of  property  as  to  afford  sufficient  evidence  in  itself  of  insanity; 
and  he  cited  1  Cox  Ch.  cases,  355;  3  Merivale  84;  3  Eng.  Eccl.  Rep.; 
1  Adams  Ecc.  Rep.  99;  Evans  vs.  Wright;  Shelf ord  on  Lunatics,  174, 
in  Law  Library,  Nov.  1833,  178,  Swinburne  on  Wills,  478-9. 

Latimer,  Read,  jr.  and  Rogers,  contra.  The  question  of  the  pol- 
icy or  impolicy  of  the  bequest  to  a  negro  college  is  not  a  subject  for 
the  consideration  of  the  jury;  they  are  only  to  decide  whether  such 
was  the  will  of  Thomas  Chandler.  The  jury  have,  before  them  a 
paper,  regularly  executed,  which  declares  that  such  was  his  will; 
and  it  is  admitted  that  they  must  so  find  it  to  be  unless  the  other  side 
prove  that  such  was  not  his  will.    The  burthen  of  proof  lies  with  them. 

The  proof  has  totally  failed  on  the  subject  of  insanity.  With  the 
exception  of  the  diseases  incident  to  advanced  life,  nothing  has  been 
proved  tending  to  show  even  imbecility.  And  in  relation  to  these 
diseases  the  physicians,  whose  testimony  is  to  be  taken  on  this  sub- 
ject in  preference  to  the  opinions  of  others,  prove  that  they  were 
not  of  a  character  to  affect  the  mind.  The  particular  disease  under 
which  he  labored  was  asthmatic,  and  not  paralytic,  as  some  persons, 
unskilled  in  the  nature  of  diseases,  have  ventured  to  assert.  He 
continued  to  transact  his  usual  business  down  to  and  after  the  date  of 
the  will;  collecting  interest  on  his  bonds,  mortgages  and  stocks;  cal- 
culating interest  and  making  probates,  when  necessary;  and  so  late  as 
the  month  of  July,  1833,  his  deposition  was  taken  by  Mr.  Gray  on  a 
commission  from  chancery,  and  he  was  then  considered  by  the  com- 
missioner to  have  been  of  perfectly  sound  mind.  If  the  testator  was 
of  sound  mind  this  will  must  stand,  unless  it  has  been  proved  to  have 
been  made  under  the  operation  of  an  influence  counteracting  his  own 
purposes  and  violating  his  own  wishes.  No  mere  advice  or  solicita- 
tion, no  persuasion  or  argument,  will  vitiate  a  will:  it  must  be  an 
importunity,  such  as  the  testator  is  too  weak  to  resist;  a  degree  of 
solicitation  that  deprives  him  of  his  free  agenc)',  and  compels  him 
to  adopt  another  man's  will  for  his  own.  3  Stark.  1707;  2  Phil. 
Ev.  449;  1  Ecc.  Rep.  340,  344;  2  do.  231.  And  the  procuring  a 
will  to  be  made  will  not  vitiate  it ;  unless  fraud  has  been  practised  on 
the  testator.    3  Serg.  &  Rawle  267 ;  Miller  vs.  Miller. 

What  evidence  is  there  in  this  case  of  any  influence  whatever 
having  been  exerted  over  the  mind  of  Thomas  Chandler,  much  less 
of  an  undue  influence?  The  jury  cannot  presume  fraud.  Fraud 
must  be  proved.  And  yet  they  are  called  on  in  this  case  to  presume 
in  the  first  place,  against  the  evidence,  that  Thomas  Chandler  was  so 
weak  as  to  be  very  liable  to  imposition;  and  then  to  presume  that 
William  Llovd  Garrison  and  the  whole  anti-slavery  society  have 
been  engaged  in  circumventing  this  old  man,  to  induce  him  to  make 
a  will  contrary  to  his  own  wishes.     How  stands  the  fact  in  relation 


Chandler  axd  others  vs.  Ferris.  463 

to  the  testator's  previous  views?  For  several  years  he  is  proved  to 
have  had  the  amelioration  of  the  condition  of  the  blacks  at  heart. 
In  his  will  of  1831  he  made  a  liberal  bequest  to  the  African  school, 
and  a  large  one  to  the  Colonization  society.  But  the  written  in- 
iitructions  for  the  will  of  IS.IS,  prepared  by  himself  and  written  with 
his  own  hand  forever  put  at  rest  any  idea  of  undue  influence  on  the 
part  of  Benjamin  Ferris  or  any  one  else.  These  instructions  are  so 
identical  in  language  in  many  parts  with  the  will  of  1831  as  to 
show  that  he  had  that  will  before  him  when  they  were  drawn  up; 
and  they  have  been  carried  out  with  sufficient  accuracy  in  the  will 
which  is  now  the  subject  of  discussion.  2  Ecc.  Rep.  219,  269.  A 
legacy  in  the  instructions  left  out  of  the  will  is,  not  of  itself  sufficient 
to  invalidate  the  will. 

J.  M.  Clayton,  in  reply,  relied  chiefly  on  the  discrepancies  be- 
tween the  instructions  and  the  will.  He  insisted  that  they  were  not 
even  in  substance  the  same.  The  instructions  directed  the  disposal 
of  the  residue  of  his  estate  for  the  purchase  of  land  on  which  a  gram- 
mar school  should  be  founded  by  the  benevolence  of  other  persons; 
and  if  not  so  founded  within  seven  years,  that  it  should  go  over  to 
his  nephews  and  nieces.  The  will  as  drawn  disposes  of  the  residue 
for  founding  a  college,  and  gives  it  over  to  the  nephews  and  nieces 
only  in  case  the  said  college  should  not  be  commenced  within  seven 
years,  and  no  other  funds  raised  toivards  that  object.  The  in- 
structions were  designed  to  draw  out  the  active  benevolence  of  other 
individuals  in  the  completion  of  a  project  of  which  Thomas  Chandler 
only  offered  the  foundation,  and  gave  the  property  to  his  next  of  kin 
in  the  event  of  its  not  being  completed  within  the  limited  time. 
The  will  makes  Thomas  Chandler  not  only  begin  but  complete  the 
establishment,  and  gives  the  property  away  from  his  kindred  forever 
on  the  subscription  of  one  dollar  by  any  other  person  to  the  same 
object.  It  is  perfectly  competent  for  the  trustees  under  the  will,  if 
they  see  proper,  to  subscribe  every  dollar  of  the  residue  of  this  es- 
tate to  the  funds  (jf  the  anti-slavery  society  of  New  England,  and,  in 
conjunction  with  that  society,  to  establish  in  Delaware,  a  slave  hold- 
ing state  itself  and  on  the  borders  of  the  southern  slave  "holding 
states,  an  institution  that  shall  forever  wage  war  with  their  and  our 
institutions,  and  shall  finally  overthrow  them  if  it  succeeds  in  its 
avowed  objects. 

There  is  much  evidence  of  imbecility  of  mind  in  the  testator  in 
this  case;  but  it  is  not  necessary  for  us  to  rely  on  his  insanity.  He 
is  proved,  at  least,  to  have  been  a  man  of  fluctuating  capacity. 
And  when  the  testator's  capacity  is  fluctuating  he  is  not  to  be  consid- 
ered as  absolutely  intestable;  but  to  set  up  such  a  will  there  must 
be  evidence  of  instructions  and  volition.  3  Ecc.  Rep.  260.  How 
stands  the  proof  on  that  subject?  Here  are  instructions  given  in 
writing;  a  will  drawn  totally  different  from  them;  no  proof  of  the 
departure  from  the  instructions  having  been  explained  to  him;  no 
proof  that  the  will  was  even  read  over  to  him;  executed  privately, 
in  the  presence  of  strangers,  and  in  the  house  of  the  executor  and 
trustee  and  draftsman ;  under  these  circumstances  we  confidently  ask 
the  jury  to  say  that  the  paper  now  before  them  is  not  the  last  will 
and  testament  of  Thomas  Chandler. 


464  Crawford's  lessee  vs.  Green. 

The  Chief  Justice  charged  the  jury,  (after  stating  the  question 
and  reviewing  the  evidence,)  that  if  they  were  of  opinion  from  the 
evidence  that  the  testator  was  capable  of  exercising  thought  and 
judgment  and  reflection;  if  he  knew  what  he  was  about,  and  had 
memory  and  judgment,  his  will  could  not  be  invalidated  on  the 
ground  of  insanity.  Neither  could  it  be  set  aside  on  the  ground  of 
undue  influence,  unless  such  influence  amounted  to  a  degree  of  con- 
straint such  as  the  testator  was  too  weak  to  resist;  such  as  deprived 
him  of  his  free  agency,  and  prevented  him  from  doing  as  he  pleased 
with  his  property.  Neither  advice,  nor  argument,  nor  persuasions, 
would  vitiate  a  will  made  freely  and  from  conviction,  though  such 
will  might  not  have  been  made  but  for  such  advice  and  persuasion. 
Another  and  more  material  ground  of  objection  to  the  will  is  a  sup- 
posed discrepancy  between  it  and  the  instructions  on  which  it  was 
founded  and  from  which  it  was  drawn.  If  the  jury  are  of  opinion 
that  these  dift'erences  exist  to  such  an  extent  as  to  make  the  will  es- 
sentially different  from  the  instructions,  they  must  then  judge  from 
the  evidence  whether  these  deviations  were  made  with  the  knowl- 
edge and  consent  of  the  testator.  If  they  were  not  made  known  to 
him,  if  the  will  was  not  read  over,  or  its  contents  and  variations 
from  the  instructions  otherwise  explained  to  him,  then  this  is  not  his 
will;  but  if  he  knew  of  and  approved  the  alterations  he  adopted 
them  by  the  execution  of  the  will,  and  the  same  ought  to  be  con- 
firmed. 

Verdict  setting  aside  the  will. 

J.  A.  Bayard  and  J.  M.  Clayton,  for  caveators. 

Latimer,  Read,  jr.  and  Rogers,  for  executors. 


DOE,  on  the  demise  of  WILLIAM  H.  CRAWFOED,  vs.  ROE,  casual 
ejector,  and  CUTHBERT  SEW  ALL  GREEN,  tenant  in  posses- 
sion. 

Sheriff's  deed  essential  to  title  by  execution. 

Title  under  sheriff's  sale  and  before  deed  executed  not  sufficient  to  maintain 

ejectment. 
The  demise  must  always  be  laid  after  title  accrued. 

Ejectment. 

Suit  brought  ninth  November,  1833.  Demise  laid  on  the  tenth 
October,  1833. 

The  plff.  derived  title  to  the  lands  in  dispute  under  a  sheriff's  sale 
on  judgment  and  execution  and  deed  executed  conformable  thereto. 
The  judgment  was  recovered  in  a  scire  facias  on  a  recognizance  in 
the  orphans'  court,  and  bore  date  tenth  May,  1832.  On  this  judg- 
ment a  fieri  facias  issued,  returnable  to  the  November  term,  1832, 
which  was  returned  levied  on  the  lands  in  question;  inquiry  held 
and  not  sufficient.  Venditioni  Exponas  returnable  to  Mar  term, 
1833,  upoTi  which  the  sheriff  returned  that  he  had  duly  sold  the  said 

lands  to  William  H.  Crawforr',  the  plff.'s  lessor,  on  the  day  of 

January,  1833,  which  palp  and  return  were  aoproved  and  confirmed 
by  the  court  at  the  said  May  term,  1833,  and  the  sheriff  executed  a 
deed  to  the  said  William  H.  Crawford,  the  purchaser,  on  the  25th  of 
Octoher,  1833. 


Crawfokd's  lessee  vs.  Green.  4G5 

Bodney,  for  deft,  moved  a  nonsuit.  The  title  of  the  plff.'s  lessor 
rests  on  the  sheriff's  deed  of  the  25th  October,  1833.  It  then  ac- 
crued. The  declaration  sets  out  a  demise  on  the  tenth  of  October,. 
1833,  some  fifteen  days  previous  to  the  date  of  his  title.  The  plff. 
must  show  that  his  demise  rests  on  sufficient  legal  title  in  the  lessor 
at  the  time  of  the  demise.  This  is  an  elementary  principle.  The 
demise  must  be  laid  after  title  accrued,  Buller,  105;  2  Sellon's. 
Prac.  93. 

Bayard,  for  plff.,  did  not  controvert  the  principle  if  it  applied  to 
the  case,  but  he  thought  that  the  title,  though  perfected  by  the  deed, 
would  have  relation  to  the  sale,  or  at  least  to  the  confirmation.-  The 
sale  of  the  land  here  was  in  January,  1833,  and  it  was  confirmed  at 
the  'May  term  following.  The  act  of  assembly  "  concerning  the  ac- 
tion of  ejectment''  (Dig.  170^  has  provided  that  no  objection  shall 
be  made  to  the  form  of  action,  or  to  the  right  of  the  lessor  of  the  plff. 
to  make  the  demise,  if  he  could  recover  the  premises  in  any  form  of 
action. 

The  Court  directed  a  nonsuit.  The  plff.'s  title  accrues  from  the 
sheriff's  deed.  It  commenced  with  the  sale,  but  was  not  perfected 
until  a  deed  was  executed;  and  though  he  has  certain  rights  given  to 
him  by  act  of  assembly  as  to  rent  from  the  time  of  sale  and  to  pos- 
session in  a  summary  way,  the  legal  title  is  not  in  the  purchaser 
until  a  deed  is  executed.  In  this  state  a  deed  has  always  been  con- 
sidered necessary  to  perfect  the  title  by  execution  and  enable  the 
purchaser  to  bring  ejectment,  (a)  The  sheriff  seldom  receives  the 
purchase  money,  or,  at  least,  all  of  it,  until  the  deed  is  made.  The 
practice  is  to  require  a  deposit  of  ten  per  cent,  at  the  time  of  the  sale. 
The  act  referred  to  was  intended  merely  to  do  away  the  old  actions 
of  assize  and  writ  of  right.  To  apply  it  to  such  a  case  as  this  would 
be  to  enable  the  plff.  to  recover  on  a  mere  equitable  title.  And  even 
that  is  not  shovm;  for  there  is  no  proof  of  the  payment  of  the  pur- 
chase money  but  what  is  furnished  by  the  deed,  and  that  is  after  the 
demise. 

Mr.  Bayard  suggested  that  the  narr  was  against  Boe,  the  nominal 
deft.,  and  had  not  yet  been  altered  for  the  present  deft.  Green,  and 
asked  if  the  court  would  not  now  permit  an  amendment.  The  chief 
justice  said  that  the  alteration  was  always  presumed  after  the  real 
deft,  had  appeared  and  entered  into  the  common  consent  rule.  The 
court  would  allow  him  to  be  substituted  even  after  verdict  and  judg- 
ment. 

The  plff.  was  nonsuited. 

J.  A.  Bayard,  for  plaintiff. 

George  B.  Bodney,  for  defendant. 

(a)  4  Kent's  Com.  434.  In  those  states  in  which  the  sheriff  sells  the 
land,  instead  of  extending  it  to  the  creditor,  he  executes  a  deed  to  the  pur- 
chaser, and  it  is  held  that  the  sheriff's  sale  is  within  the  statute  of  frauds, 
and  requires  a  deed  or  note  in  writing  of  the  sale,  signed  by  the  sheriff.  8i- 
monds  vs.  Catlin,  2  Caines  Rep.  60;  Barney  vs.  Patterson,  6  Harr.  and 
Johns.  182.  In  Louisiana,  the  judgment  must  be  recited  in  the  deed ;  and  it 
has  been  adjudged  that  the  sheriff's  deed  is  essential  to  the  title.  Dufour 
vs.  Camfranc,  11  Martin's  Rep.  607 ;  Durnford  vs.  Degruys,  8  Martin,  222. 


46G  Beeson  vs.  Beeson's  Administrator's. 

McGLENSEY  and   WOLFE   vs.   JOHN   McLEAE,   garnishee  of 
GOLDSMIT  and  GOUDKOP. 

Exuu«retur  entered  on  a  bail  piece  on  it  appearing  that  the  principal  had  been 
discharged  by  the  insolvent  laws  of  Pennsylvania. 

Attachment. 

llule  to  show  cause  why  an  exoneretur  should  not  be  entered  on  a 
bail  piece. 

The  deft.,  McLear,  was  summoned  as  the  garnishee  of  Goldsmit 
tind  Goudkop,  on  a  writ  of  foreign  attachment,  at  the  suit  of  plffs., 
against  the  said  Goldsmit  and  Goudkop.  The  defts,  appeared  and 
put  in  special  bail  to  the  action,  and  thereby  discharged  the  garnishee 
and  dissolved  the  attachment.  Dig.  46.  The  bail  now  applied  for 
an  exoneretur,  on  the  ground  that  the  defts.  had,  previously  to  the 
attachment,  been  regularly  discharged  under  the  insolvent  laws  of 
Pennsylvania.    Both  plffs.  and  defts.  are  residents  of  Pennsylvania. 

The  Court  at  first  doubted;  but,  on  consideration,  they  made  the 
rule  absolute.  See  ante  367 :  Bailey  vs.  Seal's  special  hail,  and  8  T. 
Rep.  609. 

Rogers,  in  support  of  the  rule. 


MAEIA  BEESON  vs.  JOSEPH  BEESON'S  ADMINISTEATORS. 

The  act  "  concerning  the  entering  of  judgment  bonds  "  is  cbnstitutional. 
Construction  given  to  that  act. 

The  word  tenor  as  used  therein  means  only  substance  or  import. 
Construction  of  the  constitutional  restriction  against  impairing  the  obligation 
of  contracts. 

EuLB  to  show  cause  why  judgment  should  not  be  set  aside. 

The  judgment  was  entered,  without  appearance  or  declaration,  by 
the  prothonotary  of  the  late  court  of  common  pleas,  under  the  provi- 
sions of  the  act  of  assembly  of  1830.  8  vol.  3.  The  entry  was  in 
the  following  words: 

"Maria  Beeson  vs.  Joseph  Beeson.  D.  S.  B.  $2,000.  Judgment 
entered  on  a  bond  and  warrant  of  attorney  dated  March  15th,  1830, 
in  the  penal  sum  of  two  thousand  dollars,  x;onditioned  for  the  pay- 
ment of  one  thousand  dollars  in  one  year  from  the  date,  with  lawful 
interest. 

March  loth,  1830.    Judgment. 

Jos.  Eoberts,  Pro. 

Eeal  debt,  $1,000.  Interest  from  March  loth,  1830,  at  5^  per 
cent,  per  annum.    March  15th,  1830,  4  o'clock  P.  M." 

Richard  H.  Bayard,  for  plff.  showed  cause.  The  question 
is  on  a  construction  of  the  act  of  sixteenth  January,  1830,  (8  vol.  3) 
under  which  this  judgment  was  entered.  The  grounds  of  the  mo- 
tion I  suppose  to  be,  that  a  full  copy  of  the  bond  and  warrant  of  at- 
torney is  not  set  out  upon  the  record ;  and  secondly,  that  the  act  of 
assembly  varies  the  contract  of  the  parties  and  is  unconstitutional. 

The  act  directs  that  the  prothonotary  shall  "  enter  on  the  docket 


Beeson  vs.  Beeson's  Administrator's.  467 

ihe  date  and  tenor  of  the  instrument  of  writing  on  which  the  judg- 
ment may  be  founded."'  The  word  "  tenor,"  as  a  legal  term,  has 
two  meanings;  it  means  substance  and  it  means  copy:  it  means  copy 
in  reference  to  pleadings  and  indictments;  every  where  else  it 
means  substance  merely.  Jac.  Lmv  Dictionary  —  Tenor.  Tenore 
presentium  means  the  intent  or  meaning  of  the  presents.  In  testa- 
ments, statutes  and  awards  the  construction  shall  always  be  such  as 
the  intent  requires.  10  Coke,  576.  Parliamentum,  arbitramentum  et 
testamentum  are  to  be  taken  according  to  the  intent  of  those  con- 
cerned. I  go  further,  and  say  that  in  the  construction  of  laws  words 
shall  not  be  taken  in  a  strictly  technical  sense,  unless  the  intention 
-of  the  legislature  manifestly  require  it.  5  Cohe  5,  a.  The  maxim  is 
loquendum  ut  vulgus,  (4  Oolce,  46  &)  ;  attained  by  verdict  con- 
strued to  mean  convicted  by  verdict.  Now  there  is  no  word  more 
technical  than  attainted:  it  always  follows  and  is  the  consequence  of 
a  judgment;  there  could  not  therefore  be  a  stronger  case  than  that  of 
applying  an  act  which  in  its  terms  refers  to  a  person  attainted  to  one 
who  is  merely  convicted. 

The  legislature  directs  the  prothonotary  to  enter  on  the  docket  the 
date  and  ionnr  of  the  irsfcrument.  You  cannot  reject  either  of  these 
words,  but  must  give  them  both  force.  Now  if  tenor  means  an  ex- 
act copy,  it  includes  the  date,  and  makes  this  specification  of  date 
foolish.  It  therefore  does  not  appear  that  the  legislature  used  this 
word  in  a  technical  sense;  but  the  contrary  is  manifest. 

On  more  general  principles.  The  rules  of  construction  point  to 
the  old  law,  the  mischief  and  the  remedy.  The  old  law  required 
the  employment  of  an  attorney  at  law  to  confess  the  judgment;  it 
was,  in  practice,  an  act  merely  formal,  and  was  regarded  as  unneces- 
sary; this  was  the  mischief:  the  remedy  was  to  substitute  the  protho- 
notary in  the  place  of  an  attorney,  and  authorize  him  to  enter  the 
judgment  without  a  declaration.  The  act  devolves  a  duty  upon  him 
as  prothonotary,  and  he  acts  as  the  agent  of  the  law,  and  not  of  the 
parties. 

The  right  of  the  legislature  to  pass  such  a  law  cannot  be  doubted : 
it  affects  the  remedy  and  not  the  contract;  the  lex  fori  and  not  the 
lex  contractus.  It  is  so  with  insolvent  laws  and  all  laws  operating 
merely  on  the  remedy. 

But  if  the  prothonotary  has  made  a  mistake  in  the  construction  of 
this  law,  and  has  entered  the  judgment  informally,  it  is  universally 
true  that  the  court  will  amend  the  mistakes  of  their  clerk.  8  Cohe, 
150;  1  Term.  Rep.  782;  7  Term  Rep.  207,  n;  19  Vezey,  435. 
There  is  a  great  difference  between  amending  mistakes  arising  from 
the  act  of  the  party  and  such  as  arise  from  the  act  of  the  clerk. 
Even  where  a  clerk  had  entered  a  judgment  de  bonis  propriis,  which 
should  have  been  entered  de  bonis  testatoris,  it  was  amended  after 
error  brought.  The  act  of  1831  (8  v.  43)  gives  the  greatest  latitude 
of  power  in  relation  to  amendments.  It  declares  moreover  that  a 
confession  of  judgment  shall  be  a  release  of  all  previous  errors. 

Hamilton,  ut  amicus  curiae,  referred  to  two  decisions  in  Penn- 
sylvania on  an  act  precisely  similar  to  ours,  where  the  word  tenor 
was  held  to  mean  merely  substance  or  import.  7  Serg.  and  R.  and 
1  Rawle. 


468  Beeson  vs.  Beeson's  Administrator's. 

J.  A.  Bayard,  in  support  of  the  rule.  Tenor,  whenever  em- 
ployed in  reference  to  a  legal  instrument,  means  a  copy  verbatim.  In 
common  acceptation  it  has  a  wider  meaning,  but  as  a  legal  term  it  i& 
definite,  well  established  and  unvarjdng. 

I  care  not  by  what  law  the  case  is  to  be  governed;  if  the  principle 
contended  for  substitutes  one  person  to  do  an  act  in  the  place  of  an- 
other agreed  upon  by  contract,  that  law  is  unconstitutional  and  void. 
j^  man  authorizes  an  attorney  by  a  power  of  attorney  irrevocable  to 
appear  for  him  and  confess  judgment  in  favor  of  another;  no  judg- 
ment can  be  confessed  by  any  other  person,  nor  in  any  other  man- 
ner, nor  can  any  legislature  authorize  it  to  be  done  otherwise.  The 
power  of  confessing  the  judgment  is  derived  from  the  contract,  and 
must  be  governed  by  the  contract.  The  contract  is  itself  unalterable 
but  by  the  consent  of  both  parties. 

Then  as  to  the  amendment.  I  deny  that  the  act  of  the  prothono- 
tary  in  the  entry  of  such  a  judgment  as  this  is  an  official  act.  The 
act  points  to  him  as  an  agent  of  the  parties;  the  substitute  of  another 
agent.  The  court  may  amend  misprisions  of  a  clerk  as  such,  but  not 
when  he  acts  in  any  other  capacity.  Suppose  a  power  of  attorney 
to  the  prothonotary  and  another  jointly,  executed  by  the  prothono- 
tary  alone,  would  the  court  hesitate  a  moment  to  set  aside  such  an 
execution  of  a  power?  Yet  this  goes  not  so  far  as  the  case  before  us, 
which  is  the  execution  by  one  person  of  a  power  specially  delegated 
to  another. 

I  admit  the  constitutional  authority  of  a  clerk  to  sign  a  judgment 
in  a  case  depending  before  the  court,  but  deny  his  authority  to  docket 
a  case  vrithout  the  consent  of  the  parties  for  the  purpose  of  signing 
judgment. 

The  deft.'s  administrators,  for  whom  I  appear,  have  no  interest  in 
the  settlement  of  the  question;  they  merely  wish  a  decision  to  pro- 
tect them  in  the  administration  of  the  assets.  The  question  is  how- 
ever of  importance  in  reference  to  other  cases  similarly  situated,  and 
the  principle  involved  is  one  of  consequence.  It  is  on  this  account 
only  that  1  have  urged  the  propriety  of  vacating  this  judgment. 

R.  H.  Bayard,  in  reply.  The  argument  on  the  other  side  rejects 
all  distinction  between  the  law  of  rights  and  the  law  of  remedies,  a 
distinction  which  is  well  established.  The  latter  may  be  altered  at 
any  time  without  affecting  the  contract. 

Second.  It  assumes  that  the  prothonotary  in  entering  a  judgment 
acts  not  as  a  clerk  or  public  officer,  but  as  the  agent  of  the  party, 
which  I  deny.  But,  if  he  is  to  be  considered  as  the  agent  of  the 
party,  the  contract  authorizes  him.  The  contract  is  made  in  subor- 
dination to  the  law  and  in  reference  to  it.  The  law  becomes  a  part 
of  the  contract.  It  says  that  if  a  man  executes  a  bond  with  a  war- 
rant of  attorney  of  a  certain  description,  it  shall  be  the  duty  of  the 
prothonotary  to  enter  a  judgment  on  such  bond.  Whether,  there- 
fore, the  prothonotary  in  entering  judgment  acts  as  the  agent  of  the 
party  or  as  a  public  officer,  he  is  equally  authorized  by  the  contract 
and  the  law. 

Curia  advisare  vult. 


Beeson  vs.  Beeson's  Administrator's.  469 

Harrington,  Justice. 

"The  judgment  in  this  case  was  entered  by  the  prothonotary  with- 
out any  declaration  or  appearance;  by  virtue  of  a  bond  and  warrant 
of  attorney  in  the  usual  form,  and  under  the  authority  as  it  is  con- 
tended of  the  act  of  assembly  of  1830.  That  act  makes  it  the  duty 
of  the  Prothonotary  "on  the  application  of  the  holder  of  a  bond  in 
which  Judgment  is  confessed,  or  containing  a  warrant  for  an  attorney 
at  law  or  other  person  to  confess  judgment ;  to  enter  judgment  against 
the  person  or  persons  who  executed  the  same,  for  the  amount  which 
from  the  face  of  the  instrument  may  appear  to  be  due,  without  the 
agency  of  an  attorney  or  declaration  filed,  with  such  stay  of  execu- 
tion as  may  be  therein  mentioned,  for  the  fee  of  one  dollar  to  be  paid 
by  the  deft.,  particularly  entering  on  his  docket  the  date  and  tenor 
of  the  instrument  of  writing  on  which  the  judgment  may  be  founded, 
which  shall  have  the  same  force  and  effect  as  if  a  declaration  had 
been  filed  and  judgment  confessed  by  an  attorney  or  judgment  ob- 
tained in  open  court  and  in  term  time,"  &c. 

The  present  application  to  set  aside  this  judgment  proceeds  on  the 
ground — First.  That  it  is  not  authorized  by,  nor  in  conformity  with 
the  act  of  Assembly;  and  Second — That  the  act  of  assembly  is  un- 
constitutional, because  it  varies  the  contract  of  the  parties  and  im- 
pairs its  obligation. 

The  question  arising  upon  this  rule  is  one  of  great  consequence  in 
principle,  as  it  involves  an  inquiry  by  one  branch  of  the  government 
whether  another  and  co-ordinate  branch  has  not  exceeded  its  legiti- 
mate powers ;  and  it  is  of  much  consequence  in  its  immediate  results  in 
the  case  before  us  and  many  others  similarly  situated.  And,  though 
the  court  will  act  with  delicacy  and  much  deliberation  in  determining 
whether  an  act  of  the  Legislature  shall  be  received  and  regarded  as 
the  law,  binding  upon  them  and  binding  upon  all,  or  shall  be  treated 
as  a  nullity; — yet  it  is  the  right,  and  it  is  the  duty  of  the  judiciary 
to  l)ring  all  acts  of  the  legislative  department  to  the  test  of  the  con- 
stitution, and  keep  them  within  the  limits  of  its  just  authority.  For 
though  it  be  the  law  making  power,  there  are  limits  to  the  exercise 
of  this  power;  though  it  give  law  to  the  judiciary  and  to  all  other 
■departments,  it  is  not  omnipotent,  but  derives  its  power  subject  to 
specified  restraints,  from  the  paramount  laAv,  the  constitutions  first  of 
the  United  States  and  then  of  this  State.  And  it  belongs  to  the  judi- 
ciary to  decide  whether  these  restraints  have  been  disregarded,  or  in 
any  manner  violated;  for,  independent  of  the  absurdity  of  leaving  it 
to  the  legislature  to  decide  upon  the  qualifications  to  their  own  power, 
it  is  the  province  of  the  courts  to  declare  what  is  the  law,  and  they 
cannot  recognize  and  give  the  force  of  law  to  such  acts  of  the  legisla- 
ture as  are  contradictory  to  and  inconsistent  with  the  law  paramount. 

By  the  constitution  of  the  United  States  the  several  States  are  re- 
strained from  passing  any  "law  impairing  the  obligation  of  contracts." 
This  is  one  of  the  restrictions  on  legislative  power;  and  it  is  one 
which  has  given  rise  to  much  discussion  and  which  has  frequently 
been  the  subject  of  judicial  interpretation.  We  are  now  to  consider 
its  operation  on  this  case.  Is  it  violated  by  our  act  of  assembly? 
Does  that  act  by  authorizing  a  prothonotary  of  the  court  to  enter 


470  Beeson  vs.  Beeson's  Administratoe's. 

judgment  on  such  a  bond  and  warrant  of  attorney  as  this,  impair  th& 
obligation  of  this  contract?  The  contract  is  a  bond  for  $2000 — con- 
ditioned to  be  void  on  payment  of  1000;  with  a  warrant  of  attorney 
appended,  authorizing  (in  the  usual  form)  any  attorney  in  any  court 
of  record  in  the  State  of  Delaware  or  elsewhere,  to  appear  for  the 
obligor  at  the  suit  of  the  obligee,  and  after  one  or  more  declarations 
filed  for  the  said  penalty  thereupon  to  confess  judgment  to  the  said 
obligee,  &c.  Has  the  legislature  the  power  to  vary  the  mode  of  en- 
tering judgment  on  such  a  bond;  to  direct  another  person  than  an 
attorney  to  enter  the  judgment,  without  appearance  or  declaration, 
and  does  such  direction  impair  the  obligation  of  the  contract? 

The  true  import  of  these  words  in  the  constitution  has  been  settled 
by  judicial  construction  in  several  cases.  They  have  not  been  taken 
in  their  literal  and  fullest  extent,  but  restrained  by  what  was  sup- 
posed to  be  the  spirit  and  intent  of  the  provision,  and  in  conformity" 
with  public  policy.  In  the  case  of  the  Farmers'  and  Mechanics' 
Bank  vs.  Smith,  the  supreme  court  of  Pennsylvania  say,  "when 
multitudes  are  affected  by  the  construction  of  an  instrument,  great: 
regard  should  be  paid  to  the  spirit  and  intention.  If  the  words 
impairing  the  obligation  of  contracts  are  to  be  understood  in  their 
greatest  extent,  the  consequences  are  alarming.  For  all  acts  respect- 
ing divorce,  all  acts  of  limitation,  all  acts  by  which  private  property 
has  been  taken  for  public  use  or  for  the  use  of  chartered  companies^ 
for  roads,  canals,  &c.  would  be  void,  because  in  all  these  cases  con- 
tracts are  impaired." 

A  distinction  has  been  taken  and  is  established  between  a  law  impair- 
ing the  obligation  of  a  contract  and  a  law  modifying  the  remedy  for 
enforcing  the  contract.  It  is  recognized  by  the  supreme  court  of  the 
United  States  in  Sturgis  vs.  Crowning  shield,  (^  Wheat.  1.)  and 
indeed  it  is  upon  this  distinction  that  insolvent  laws  and  acts  of  lim- 
itation are  sustained.  And  yet  it  is  not  very  clear  to  my  view.  If 
there  be  a  contract  for  the  payment  of  money,  the  means  of  enforcing 
the  performance  of  that  contract  are  of  the  very  essence  of  the  con- 
tract and  constitute  its  obligation.  A  limitation  law  wholly  takes 
away  my  remedy,  and  not  only  impairs  but  destroys  my  contract  if 
I  do  not  sue  in  the  prescribed  time.  An  insolvent  law  deprives  me 
of  my  remedy  against  the  person  of  my  debtor;  yet  in  the  one  case, 
the  contract  imposes  an  obligation  of  pajrment  unlimited  as  to  time; 
and  in  the  other,  confers  the  right  of  taking  the  debtor's  person  in 
execution.  If  from  public  policy — the  quieting  of  suits — the  relief 
of  honest  but  unfortunate  debtors  and  consequent  encouragement  of 
industry  and  enterprise;  or  from  a  supposed  conformity  with  the 
spirit  and  intention  of  the  constitution,  the  highest  tribunals  in  the 
country  have  so  construed  this  restriction  on  the  legislature  as  ta 
still  leave  them  this  extensive  power  over  the  remedies  for  enforcing 
a  contract,  can  it  be  doubted  that  the  legislature  is  competent  to  di- 
rect the  manner  in  which  judgment  shall  be  entered  on  a  bond  itself 
authorizing  the  entry  of  a  judgment? 

Another  distinction  has  been  taken  equally  important  in  its  bearing 
on  this  case,  and  that  is  between  the  prospective  and  retrospective 
operation  of  laws  varying  or  qualifying  contracts.  It  has  been  said 
that  the  constitutional  restriction  was  merely  designed  to  prevent 


Beeson  vs.  Beesox's  ad:m'es.  471 

the  states  from  the  manifest  injustice  of  taking  away  vested  rights 
and  impairing  existing  contracts ;  and  that  it  was  not  designed  to  pro- 
hibit the  states  from  making  any  prospective  regulations  in  relation 
to  the  form,  remedy  or  obligation  of  contracts.  That  the  contract 
made  subsequent  to  the  law  is  made  in  reference  to  the  law  and  sub- 
ject to  it,  and  adopts  its  provisions  as  a  part  of  the  contract  itself. 
The  parties  themselves  knowing  the  law  in  reference  to  the  subject 
matter  of  their  contract  are  bound  to  conform  themselves  to  it,  and 
not  by  their  individual  will  to  repeal  the  law  of  the  land.  Thus  in 
Blanchard  vs.  Russel  ^13  Mass.  R.  1.)  Chief  Justice  Parker  says 
''a  law  which  is  in  force  when  a  contract  is  made  cannot  be  said  to 
have  that  effect  (of  impairing  the  obligation  of  contracts;)  for  the 
contract  being  made  under  the  law  is  presumed  to  be  made  in  refer- 
ence to  it  and  the  parties  are  legally  conusant  of  it  at  the  time. 
The  contract  in  siich  case  is  not  impaired  by  the  law,  for  the  law  is 
a  part  of  the  contract."  In  Mather  vs.  Bush,  (16  Johns.  Rep. 
24:6.)  Spencer,  Chief  Justice  recognizes  the  same  law.  "  It  cannot 
be  controverted  (says  he)  that  the  parties  to  a  contract  are  to  be 
deemed  conusant  of  the  laws  which  regulate,  control  or  affect  their 
contracts;  and  in  construing  a  contract  for  the  payment  of  money, 
thus  entered  into,  it  must  be  understood  in  reference  to  any  existing 
law  which  bears  upon  it,  and  may  modify  or  control  it."  Now  before 
the  contract  in  this  case  was  entered  into  there  existed  a  law  of  this 
state  authorizing  the  Prothonotary,  on  the  application  of  the  holder 
of  a  bond  containing  a  warrant  to  an  attorney  at  law  or  other  person 
to  confess  judgment,  to  enter  judgment  on  such  bond.  With  a 
knowledge  of  the  law,  and  subject  to  it,  the  parties  entered  into  a 
contract  containing  precisely  such  a  warrant  of  attorney,  they  brought 
themselves  within  its  operation  and  are  bound  by  it.  How  can  it  be 
said  that  the  law  impairs  the  obligation  of  this  contract ;  the  principle 
contended  for  would  make  the  contract  repeal  the  law.  On  the  con- 
trary the  law  becomes  a  part  of  the  contract  as  much  so  as  if  its  pro- 
visions were  inserted  in  it.  And  there  is  no  such  absurdity  as  was 
supposed  in  the  argument  that  the  legislature  should  appoint  an  agent 
to  appear  and  act  for  another  without  his  consent,  or  should  substitute 
one  agent  for  another  of  the  party's  own  choosing;  the  prothonotary 
acts  not  as  the  agent  of  the  party  but  of  the  law,  the  officer  of  the 
court  authorized  by  the  constitution  (art.  6  sec.  23,)  "to  enter  judg- 
ments according  to  law  and  the  practice  of  the  court."  It  is  as  much 
a  clerical  act  on  the  part  of  the  prothonotary  as  when  he  signs  a 
judgment  for  want  of  a  plea,  the  one  being  done  by  the  express  direc- 
tions of  the  law,  and  the  other  under  the  rules  and  practice  of  the 
court,  and  both  equally  authorized  by  the  constitution. 

If  I  am  right  then  in  the  opinion  I  have  formed  that  this  act  of 
assembly  is  constitutional,  it  remains  to  be  considered  whether  the 
entry  of  this  judgment  is  so  defective  in  point  of  form  as  to  require 
that  the  court  shall  set  it  aside  or  treat  it  as  a  nullity.  The  act  directs 
the  prothonotary  to  enter  the  judgment  "for  the  amount  which  from 
the  face  of  the  instrument  may  appear  to  be  due" — "with  such  stay  of 
execution  as  may  be  therein  mentioned" — "particularly  entering  on 
his  docket  the  date  and  tenor  of  the  instrument  of  writing  on  which 
the  judgment  may  be  founded." — Though  this  act  is  loosely  drawn  it 


472  Beeson  vs.  Beeson's  Administrator's. 

ifc  sufficiently  apparent  from  it  that  whatever  may  be  the  legal  import 
of  its  terms,  their  spirit  and  intention  require  only  a  statement  of  the 
import  or  substance  of  the  bond.  The  specification  of  the  date  is 
entirely  conclusive  that  the  word  tenor  was  not  used  in  its  strictly 
technical  sense,  but  in  its  common  and  usual  signification.  And, 
though  I  would  not  run  into  loose  conjectures  about  the  intention  of 
the  legislature,  I  cannot  reject  a  plain  indication  of  intention  if  it  was 
even  contrary  to  the  usual  meaning  of  the  words.  But  in  this  case 
it  is  not.  The  word  used  has  two  meanings  and  it  is  evident  that  the 
legislature  used  it  in  that  sense  in  which  it  is  commoiily  used.  We 
have  seen  also  that  even  in  the  construction  of  constitutional  law  the 
courts  do  not  hold  themselves  confined  to  the  letter  but  will  look  be- 
yond it  to  the  intent  and  spirit.  And  the  plainest  rules  for  the  con- 
struction of  legislative  enactments  direct  our  search  not  only  into  the 
spirit  of  the  law  but  into  the  object  and  motive  of  the  legislator. 
This  law  discloses  its  object.  It  was  to  avoid  the  necessity  of  em- 
ploying an  attorney  at  law  to  confess  judgment  in  the  case  of  a  bond 
and  warrant  of  attorney  in  the  common  form.  The  necessity  of  em- 
ploying an  attorney  for  this  purpose  is  held  out  in  the  law  as  an  evil 
— it  was  the  mischief  to  be  remedied — and  the  remedy  applied  is  in 
authorizing  the  prothonotary  to  enter  the  judgment  without  the  inter- 
vention of  an  attorney.  Could  it  be  supposed,  even  if  the  words  of 
the  law  did  not  forbid  such  a  construction,  that  they  intended  in  the 
use  of  the  word  tenor  to  surround  this  remedy  with  such  a  form  of 
technical  precision  as  to  make  it  inoperation  or  only  to  be  used  at  ithe 
greatest  hazard.  The  object  was  to  facilitate  the  entry  of  judgments ; 
this  construction  would  greatly  increase  the  difficulty  requiring  as  it 
does  of  the  clerk  a  precision  not  before  required  either  of  attorney 
or  clerk ;  and  making  the  consequences  of  neglect  in  the  slightest  par- 
ticular fatal  to  the  judgment.  But  I  rely  chiefly  on  the  words  of  the 
law  without  resorting  to  this  inference,  though  I  should  be  authorized 
to  do  so  if  necessary.  I  cannot  not  understand  the  word  tenor  to 
mean  a  literal  copy  of  the  bond  without  rejecting  the  word  date 
which  has  a  suitable  and  sensible  meaning  if  tenor  be  construed  to 
mean  the  import  or  substance. 

On  the  whole,  though  I  consider  the  entry  of  this  judgment  very 
informal  and  loose,  I  cannot  say  that  it  is  not  a  substantial  compli- 
ance with  the  act  of  assembly ;  and  I  am  for  discharging  the  rule. 

Robinson,  Justice,  concurred. 

Clayton,  Chief  Justice,  dissented  and  assigned  his  reasons  at 
length.  He  stated  the  rule  to  be,  that  in  the  construction  of  statutes 
you  are  to  take  the  words  in  their  common  acceptation,  unless  tech- 
nical words  be  used,  and  then  they  are  to  be  taken  technically  and 
according  to  their  established  meaning;  he  referred  to  Shellei/s  case 
to  show  that  the  intention  of  the  testator  would  be  sooner  violated 
than  that  a  word  of  art  should  be  understood  differently  from  its  es- 
tablished meaning.  Tenor  is  a  technical  word ;  its  meaning  is  as  well 
established  in  reference  to  legal  instruments  as  the  meaning  of  the 
word  "heir"  in  testamentary  dispositions;  and  as  a  technical  word  it 
invariably  means  an  exact  copy.  If  in  pleadings  it  must  be  so  taken 
(and  this  seemed  to  be  admitted)  why  not  in  reference  to  the  entry  of 
a  judgment,  which  is  the  last  stage  and  consummation  of  all  pleadings. 


Beeson  vs.  Beeson's  adm'r.  473 

He  would  not  say  that  the  law  under  which  this  judgment  professes 
to  be  entered  was  unconstitutional;  but  it  is  a  law  in  derogation  of 
common  right  and  ought  to  be  construed  strictly.  No  one  will  doubt 
that  a  man  in  making  a  contract  and  delegating  a  specific  power  has 
the  right  to  select  the  agent  for  the  execution  of  that  power;  and 
it  is,  at  the  least,  a  violent  and  harsh  exercise  of  legislative  power  to 
deprive  him  of  this  right.  It  is  a  principle  in  the  construction  of 
statutes  that  they  shall  be  rendered  as  consistent  with  the  natural 
principles  of  justice  and  common  right  as  possible;  and  he  thought 
there  was  a  plain  interpretation  of  this  law  that  would  satisfy  all  its 
provisions,  give  effect  to  every  part  of  it,  and  yet  make  it  entirely 
consistent  with  the  contract  of  the  parties.  It  would  avoid  the  hard- 
ship and  the  absurdity  of  substituting  one  agent  and  attorney  in  the 
place  of  another,  of  the  party's  own  choosing,  without  his  consent. 
The  act  provides  that  it  shall  be  the  duty  of  the  prothonotary  on  the 
application  of  the  holder  of  a  bond  "in  which  judgment  is  con- 
fessed, or  containing  a  warrant  for  an  attorney  at  law,  or  other 
person  to  confess  judgment"  to  enter  judgment  thereupon.  Now 
if  these  words  or  other  person  enter  into  the  bond  and  form  a 
part  of  the  warrant  of  attorney  there  is  no  difficulty  in  authorizing 
the  clerk  to  enter  judgment,  for  the  contract  authorizes  him  under 
the  designation  of  "other  person."  He  would  take  the  words  con- 
junctively and  not  disjunctively,  and  confine  the  prothonotary's 
power  of  entering  judgments  strictly  to  the  case  of  a  bond  and  war- 
rant of  attorney  authorizing  in  its  terms  "any  attorney  at  law  or  other 
person"  to  confess  the  judgment.  He  thought  this  construction 
fully  authorized  by  the  terms  of  the  act,  and  necessary  to  save,  on  the 
one  hand,  the  rights  of  the  parties;  and  to  avoid,  on  the  other,  the 
arbitrary  and  oppressive  exercise  of  power  by  the  legislature  which  ia 
involved  in  a  contrary  construction. 

On  this  interpretation  the  entry  of  judgment  in  the  present  case  is 
unauthorized.  The  warrant  being  to  "any  attorney  of  any  court  of 
record  in  the  state  of  Delaware  or  elsewhere,"  does  not  extend  to  the 
prothonotary  either  by  a  special  designation  or  in  general  terms. 

Eule  discharged, 

E.  H.  Bayard,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 

60 


SUPERIOR  COURT. 

SPRING  SESSIONS, 
1835. 


BUETON  W.  WAPLES  ct  al.  vs.  DAVID  H.  WAPLES. 

In  an  action  of  waste  the  plff.  declared  on  a  tenancy  in  common  with  the  deft. ; 
the  proof  was  of  a  co-parcenary.  Held  to  be  a  fatal  variance,  though  the 
action  by  our  law  lies  equally  between  co-parceners  as  between  joint  tenants. 

The  acts  of  an  ageni  in  the  general  course  of  his  employment  are  evidence 
against  the  principal,  without  proof  that  they  were  done  by  his  orders. 

Capias  case  for  waste.    Plea,  not  guilty.    Issue. 

The  plffs.  counted  in  an  action  on  the  case  as  tenants  in  common 
against  their  co-tenant  for  waste  and  injury  committed  by  him  on 
the  land.  It  appeared  on  the  evidence  that  Woolsey  Waples,  the 
fathers  of  the  parties  plffs.  and  deft.,  died  siezed  of  the  land  upon 
which  the  waste  was  alledged  to  be  committed,  about  the  year  1828, 
leaving  the  said  plffs.  and  deft.,  his  children^  and  a  widow,  to  sur- 
vive him.  The  widow's  dower  had  been  laid  off  in  the  land,  and 
the  residue  remained  undivided.  That  the  deft,  resided  on  the  resi- 
due, and  had  cut  a  quantity  of  timber,  out  of  which  he  had  built  a 
house  on  the  premises,  and  had  also  cut  and  sold  a  considerable  quan- 
tity of  cedar  posts. 

The  deft,  objected  to  proof  by  a  witness,  that  he  had  seen  his 
(deft.'s)  servants  hauling  posts  from  the  premises  to  market;  but 

The  Court  said  it  was  evidence  to  go  to  the  jury.  The  posts 
were  cut  and  carried  to  market  by  the  deft.'s  agents  in  the  course  of 
their  ordinary  employment.  If  the  witness  knows  that  the  cutting 
and  hauling  were  by  persons  in  the  general  employ  of  deft,  and  in 
the  course  of  that  employment,  it  may  go  to  the  jury  without  express 
proof  that  they  were  acting  by  deft.'s  orders. 

Cullen,  for  deft,  moved  a  nonsuit. 

The  narr  is  in  action  on  the  case  in  the  nature  of  waste.  It  sets 
out  that  plffs.  and  deft,  are  tenants  in  common  of  the  locus  in  quo. 
The  proof  is  that  the  hmd  descended  on  the  parties  as  heirs  at  law  of 
Woolsey  Waples,  who  died  intestate  in  the  year  1828.  By  the 
"act  concerning  the  real  estates  of  intestates,"  -passed  in  1827, 
(Digest  315,^  the  lands  of  an  intestate  "descend  and  pass  in  fee 
simple  to  the  kindred,  male  and  female,  of  said  intestate,  in  co-par- 
cenary," according  to  the  mode  pointed  out  in  that  act.  The  vari- 
ance, therefore,  between  the  proof  and  the  declaration  is  fatal.  17 
Com.  Law  Rep.  278;  Cumyn's  landlord  and  tenant.  293.  Again. 
If  this  were  a  tenancy  in  common  the  action  would  not  lie.  An  ac- 
tion on  the  case  in  the  nature  of  waste  will  not  lie  by  one  tenant  in 
common  against  his  co-tenant  for  cutting  trees  that  are  fit  for  cutting. 
3  Stark.  Ev.  1668.  Each  tenant  in  common  has  the  right  to  cut, 
so  that  he  does  not  make  waste,  and  the  cutting  of  ripe  timber  is  not 


EusT  vs.  Flowers.  475 

waste.  The  proof  in  this  case  is  of  a  cutting  of  ripe  timber.  The 
other  tenants  in  common  may  recover  their  share  of  the  value  of  the 
trees  cut.  8  Term  Rep.  145.  The  building  of  the  house  was  a  ben- 
efit and  not  a  disadvantage  to  the  inheritance.  Coparceners  cannot 
in  any  case  bring  an  action  on  the  case  in  the  nature  of  waste  against 
each  other.  They  diifer  from  tenants  in  common  and  joint  tenants, 
because  they  at  common  law  could  always  procure  partition;  but  not 
80  of  the  others.  3  Blac.  Com.  226-7.  The  equity  of  the  statute 
giving  an  action  of  waster  between  joint  tenants  and  tenants  in  com- 
mon does  not  extend  to  co-parceners.  This  action  cannot  therefore 
be  sustained  at  common  law.  I  agree  that  our  act  of  assembly  (Dig. 
166)  extends  the  action  to  co-parceners;  but  the  declaration  in  this 
case  is  not  founded  on  the  act,  but  is  at  common  law. 

Layton.  The  deft,  should  have  demurred.  He  is  now  too  late. 
The  narr  sets  out  a  tenancy  in  common,  which  by  the  old  intestate 
laws  was  the  condition  of  the  heirs  at  law  to  an  intestate.  (1  vol. 
Del.  Latvs,  85.)  The  objection,  therefore,  if  such  an  action  is  not 
sustainable  at  common  law  appears  on  the  face  of  the  declaration 
and  should  have  been  taken  advantage  of  by  demurrer. 

The  Court.  The  first  objection  arises  on  the  proof.  The  narr 
lays  a  tenancy  in  com.mon ;  the  proof  is  of  a  co-parcenary.  This  is  a 
fatal  variance.  The  plffs.  must  be  nonsuited  on  this  point;  it  is 
therefore  unnecessary  to  decide  the  other  questions  raised  by  deft.'s 
counsel. 

Judgment  of  nonsuit. 

Layton,  for  plaintiffs. 

Cullen,  for  defendant. 


PETEE  N".  EUST  vs.  CHAELES  ELOWEES. 

In  an  action  on  the  case,  though  for  a  tort,  the  deft,  may  justify  under  the 

general  issue. 

Capias  case.  ISTarr.  Pleas,  not  guilty,  and  justification  under 
written  license.     Issues. 

It  was  an  action  on  the  case  by  a  landlord  against  his  tenant  for 
cutting  down  trees. 

Deft,  offered  to  prove  a  verbal  permission  by  plff.  to  cut  the  trees. 
Objected  to. 

Frame.  We  do  not  contend  that  the  deft,  might  not  justify  by  a 
parol  license,  if  he  had  pleaded  such  a  license,  or  pleaded  justifica- 
tion generally;  but  he  cannot  under  the  plea  of  a  written  license. 
The  evidence  offered  is  not  compatible  with  any  plea  on  the  record. 

J.  A.  Bayard  and  Cullen,  for  deft.  This  is  an  action  of  trespass 
on  the  case,  and  not  an  action  of  trespass  vi  et  armis.  In  the  latter 
there  can  be  no  defence  by  way  of  justification  without  a  plea;  the 
defence  admits  the  trespass,  and  excuses  or  justifies  it.  The  deft, 
here  is  no  trespasser.  The  plff.  is  bound  to  make  out  his  whole  case. 
Every  matter  alledged  in  the  narr,  or  going  to  constitute  the  offence, 
is  put  in  issue  by  the  plea  of  not  guilty.  There  need  be  no  plea  of 
justification.  The  deft,  is  in  possession  of  the  premises  lawfully, 
and  the  landlord  cannot  make  him  liable  unless  he  shows  that 
the  acts  complained  of  were  done  without  his  consent.  The  narr 
alledges  that  these  trees  were  cut  bv  the  tenant  without  the  license 


476  Fergus's  lessee  vs.  Robinson. 

of  the  landlord.  The  plea  of  not  guilty  puts  the  whole  narr  in  issue, 
and  opens  up  evidence  of  any  license,  whether  written  or  verbal. 

Frame,  in  reply.  This  is  essentially  an  action  of  trespass;  the 
defl.  is  a  trespasser,  but  by  reason  of  his  being  the  tenant  of  the  plff. 
who  has  but  the  reversionary  interest  in  the  land,  he  has  to  declare 
in  this  form  of  action.  This  is  not  case  as  in  assumpsit,  which  is  an 
equitable  remedy  founded  on  implied  contract,  but  case  in  tort, 
founded  on  the  wrong,  a  trespass  in  fact,  and  only  not  treated  as 
such  by  reason  of  the  relation  of  the  parties. 

The  Court  admitted  the  evidence.    See  2  Stark.  Ev.  361. 

Frame,  for  plaintiff. 

Bayard  and  Cullen,  for  defendants. 


DOE,  on  the  demise  of  JAMES  FERGUS,  vs.  ROE  and  THOMAS 

ROBINSON. 

A  devise  "  to  A  and  her  heirs  forever ;  but  if  she  should  die  before  she  arrives 
at  lawful  age,  or  has  heirs  lawfully  begotten  of  her  body,  then  to  B,"  is  a  fee 
simple  in  A  with  an  executory  devise  over  to  B,  and  not  an  estate  tail. 

Or  may  be  changed  to  and  to  effectuate  the  intention  of  the  testator. 

Ejectment. 

James  Fergus,  by  will  bearing  date  seventh  February,  1797,  de- 
vised as  follows :  "I  give  and  bequeath  to  my  beloved  daughter,  Eliza 
Fergus,  all  my  real  and  personal  estate,  to  her  and  her  heirs  forever — 
but  if  my  beloved  daughter  Eliza  Fergus  should  die  before  she  arrives 
at  lawful  age,  or  has  heirs  lawfully  begotten  of  her  body,  then  my 
will  and  desire  is  that  it  goes  to  my  brother  Francis  Fergus  that  was 
living  in  Rockbride  county.  New  Virginia  (when  I  heard  from  him 
last)  to  him,  his  heirs  and  assigns  forever." 

Eliza  Fergus  married  John  Smith  and  died  leaving  one  child,  who 
died  before  John  Smith  and  without  issue. 

This  ejectment,  with  others  at  the  present  term,  was  brought  by  the 
heirs  at  law  of  Francis  Fergus  the  devisee  over  in  the  afsd.  will 
of  James  Fergus  under  the  idea  that  Eliza  Fergus  took  but  an  estate 
tail  by  the  said  will.  But  the  plff.'s  counsel  frankly  abandoned  this 
construction  when  the  cases  were  called  for  trial,  and  ordered  them 
discontinued,    (a) 

(a)  Note  "by  Mr.  Black. —  Where  there  has  been  a  devise  of  lands  to  A. 
in  fee,  accompanied  by  a  proviso  that  if  he  should  die  under  age  or  with- 
out issue  then  over  to  B.  in  fee,  there  can  be  little  difficulty  at  the  pres- 
ent day  either  upon  the  obvious  intent  of  the  testator,  or  on  well  settled 
authority,  in  coming  to  a  conclusion  whether  the  estate  given  to  A.  is  to 
be  defeated  on  the  happening  of  one  of  the  events,  or  whether  both  must 
occur  to  deprive  him  of  the  estate  —  in  other  words  —  whether  the  word 
**  or  "  is  to  be  taken  conjunctively  or  disjunctively. 

In  construing  wills  the  leading  object  to  be  sought  for  is  the  intention 
of  the  testator — this,  when  ascertained,  is  to  prevail,  unless  it  conflicts 
with  some  settled  rule  of  law.  In  the  devise  above  stated,  who  is  the  first 
object  of  the  testator's  bounty,  and  who  in  the  first  place  does  he  mean  to 
benefit? — unquestionably  A.  the  first  devisee.  The  second  object  is  the 
children  of  A.,  for  if  he  leaves  children  dying  under  age,  B.  gets  nothing 
by  the  will.  But  if  there  be  no  issue  and  A.  die  under  age  then  the  property 
goes  to  the  third  object  of  the  testator's  bounty  which  is  B..     Now  would  it 


Maetin's  lessee  vs.  Roach.  477 


JOHX  doe;  lessee  of  JAMES  MARTIN  vs.  RICHARD  ROE,  casual 
ejector,  and  JAMES  ROACH  tenant  in  possession. 

SAME  PLAINTIFF  vs.  ROE,  and  ISAAC  WHITE  tenant. 

A  devise  "  to  A.  and  her  heirs  forever,  except  she  should  die  without  an  heir 
born  of  her  oton  body  "  then  over  to  B.  is  an  estate  tail  in  A.  with  a  vested 
remainder  in  B.  and  not  a  contingent  fee  with  an  executory  devise. 

The  propriety  of  an  order  of  the  Orphans'  court  directing  a  sale  of  lands  for 
the  payment  of  debts  cannot  be  controverted  in  any  collateral  proceeding. 

Under  the  old  act  of  assembly  the  record  of  a  deed  was  by  the  settled  practice 
of  the  courts,  permitted  to  be  read  in  evidence,  though  such  deed  had  not 
been  recorded  within  a  year  from  its  execution. 

Ejectments. 

The  cases  were  tried  together,  depending  on  the  same  devise  in 
the  will  of  Mary  Fergus,     The  devise  was  as  fellows : — 

comport  with  the  intention  of  the  testator  so  to  construe  the  will  that  either 
the  first  or  second  object  of  his  regard  should  be  defeated  and  in  their  place 
the  third  object  substituted,  or  that  B.  should  take  in  preference  to  A.  or 
the  issue  A.  might  have — and  yet  this  would  result  if  you  construe  "  or  " 
as  a  disjunctive:  whenever  A.  should  die  underage,  leaving  issue  to  sur- 
vive him  the  issue  would  be  deprived  of  the  estate  although  they  were  the 
second  object  of  the  testator's  regard,  and  B.  the  third  object  would  be  en- 
titled to  it.  The  issue,  though  as  in  many  cases  grand  children,  would 
be  excluded,  and  B.  a  more  distant  relative  or  stranger  in  blood  would 
take  the  estate.  It  could  not  be  his  intention  to  disinherit  his  grand  chil- 
dren or  deprive  them  of  the  estate  merely  because  their  father  A.  had  not 
at  his  death  reached  twenty-one.  Again ;  by  the  devise  he  gives  to  A.  an 
estate  in  fee,  but  if  you  construe  "  or  "  in  the  proviso  as  a  disjunctive, 
you  in  fact  reduce  it  to  a  life  estate ;  it  would  follow  that  A.  neither  could 
sell  or  mortgage  it,  for  his  estate  would  cease  if  at  his  death  he  left  no  is- 
sue living — until  his  death  it  could  not  be  ascertained  whether  his  estate 
was  one  for  life  or  in  fee.  To  provide  for  A.  and  place  the  estate  abso- 
lutely at  his  disposal  if  he  attains  age,  and  not  limit  him  to  a  mere  life 
estate  because  he  has  no  children  although  he  may  have  a  wife  and  de- 
pendent family  and  to  provide  for  the  issue  of  A.  if  he  dies  before  the  age 
of  twenty-one,  and  the  period  at  which  he  could  by  will  make  provision 
for  them,  would  seem  to  be  the  reasonable  and  obvious  design  of  every 
testator  in  such  a  devise  as  that  stated ;  and  to  provide  for  B.  only  on  A. 
failing  to  attain  twenty-one,  and  leaving  no  issue.  If  a  question  can  be 
held  as  settled  by  repeated  adjudications,  this,  of  construing  "  or "  as  a 
copulative,  must  now  be  taken  as  one  of  them,  both  in  England  and  in 
this  country.  It  was  originally  considered  in  the  case  of  Soulle  vs.  Oer- 
rard  in  1596  (Croke  Eliz.  525J  and  the  court  inclined  to  consider  "  or  "  as 
a  copulative — after  this  repeated  decisions  have  been  made  construing  it  in 
the  same  way :  amongst  these  may  be  noted  Barker  vs.  Suretees,  2  Strange 
1174;  Walsh  vs.  Peterson,  3  Atky  193,  and  9  Modern  444 ;  Framlingham  vs. 
Brand,  3  Atky.  390;  1  Wilson  140;  Collinson  vs.  Wright,  Siderfin  146-8; 
Price  vs.  Hunt,  Pollexfen  64.5;  Hanhury  vs.  Cocherell,  1  Rolles  ah.  334; 
Beachcroft  vs.  Broome,  4  Term.  441;  Lessee  of  Wilkins  vs.  Kimmeys,  9 
East  366 ;  Eastman  vs.  Baker,  1  Taunton  174.  It  was  finally  placed  at  rest 
in  1805,  by  a  decision  in  the  house  of  lords  in  the  case  of  Fairfield  vs. 
Morgan,  5  Bos.  and  Pull.  38.  This  construction  has  been  adopted  in  the 
United  States  in  the  cases  of  Richardson  vs.  Noys,  2  Mass.  Rep.  56 ;  and 


478  Mabtin's  lessee  vs.  Roach. 

Fourthly.  I  give  and  bequeath  unto  my  beloved  daughter  Eliza 
Fergus  the  remainder  part  of  all  my  real  and  personal  estate  to 
her  and  her  heirs  forever  except  she  should   die   without  an   heir 

Ray  vs.  Enslin,  in  the  same  booh  564;  Hauer's  Lessee  vs.  8hitz,  2  Binney 
532;  ;*  Yeates  241;  Holmes  vs.  Holmes  Less.  5  Binney  252;  Lillehridge  vs. 
Aide,  1  Mason  224;  2  Peters  Rep.  568;  Cheeseman  vs.  Wilt,  1  Yeates  411; 
Jackson  on  demise  of  Burham  vs.  Blansham,  6  Johns.  54.  This  construc- 
tion has  now  become  a  fixed  rule  of  property  and  ought  to  stand  as  a  land 
mark  not  to  be  shaken  or  disturbed.  The  estate  of  A.  is  contingent  and  is 
settled  and  ascertained  by  either  event  occurring — on  either  event  hap- 
pening— attaining  age  or  having  issue  the  estate  over  is  gone  and  the  con- 
currence of  both  events  is  not  necessary.  But  the  important  question  re- 
mains— of  what  estate  is  A.  seized.  Is  it  an  estate  in  fee  with  a  good 
limitation  over  by  way  of  executory  devise  to  B.  in  the  event  of  both  con- 
tingencies occurring ;  or  is  it  an  estate  in  fee  tail,  with  a  remainder  over 
to  B.  contingent  on  the  death  of  A.  under  age  and  without  issue? 

There  are  a  variety  of  cases  in  which -this  question  or  one  very  similar 
not  to  be  distinguished  from  it  in  principle,  has  been  agitated  and  de- 
cided. We  have  in  Croke  Eliz.  525  as  early  as  1596  the  case  of  Soulle  vs. 
Gerrard  in  which  a  father  devises  his  lands  to  Richard  one  of  his  sons 
and  his  heirs  forever;  and  if  Richard  died  within  the  age  of  twenty-one, 
"  or  "  without  issue,  that  then  the  land  should  be  equally  divided  amongst 
his  three  other  sons : — Richard  died  within  age  having  issue.  The  court 
held  the  devise  to  Richard  to  be  an  estate  tail;  they  rejected  the  limita- 
tion "  dying  under  twenty-one,"  as  void  because  a  remainder  or  fee  could 
not  be  limited  after  a  fee,  and  construed  the  will  as  if  there  had  been  but 
the  single  contingency  *^  dying  without  issue."  When  this  decision  took 
place  the  doctrine  of  executory  devises  had  not  been  defined  or  settled 
with  any  degree  of  certainty.  This  branch  of  the  law  was  introduced 
for  the  purpose  of  carrying  into  effect  the  design  and  will  of  the  testator ; 
for  when  it  was  manifest  that  the  devisor  intended  to  create  a  remainder 
contingent  on  some  specified  event,  and  when  by  the  settled  rules  of  law 
the  proviso  could  not  operate  as  a  remainder,  and  the  will  in  this  way  be 
carried  into  effect,  courts  of  law  cautiously  and  slowly  held  and  recog- 
nized such  limitations  to  be  good  by  way  of  executory  devise,  out  of  in- 
dulgence to  wills  and  in  order  that  they  might  have  the  effect  that  it  was 
clear  it  was  intended  by  them.  One  of  the  earliest  cases  in  which  this 
principle  was  recognized  is  that  of  Fulmerston  vs.  Stewart,  which  was  de- 
cided in  the  same  year  with  the  case  of  Soulle  vs.  Oerrard  (^1596^  and  is 
referred  to  in  1  Strange  130;  Roll.  867;  Croke  Jac.  592.  This  was  fol- 
lowed in  1619  by  the  case  of  Pell  vs.  Brown,  Croke  Jac.  590  which  is  the 
leading  case  in  this  branch  of  the  law.  The  Duke  of  Norfolk's  case  (in  3 
Ch.  Cases  1  arid  2  Ch.  Rep.  229,^  in  the  year  1635,  and  the  case  of  Stephens 
vs.  Stephens  in  1736  reported  in  cases  tempore  Talbot  settled  with  precision 
the  limits  of  this  doctrine.  Had  this  doctrine  been  understood  at  the  time 
when  the  case  of  Soulle  vs.  Gerrard  was  decided,  as  it  is  now  settled,  the 
court  would  not  have  decided  as  it  then  did  that  a  fee  or  a  remainder 
could  not  be  limited  after  a  fee  and  that  the  limitation  "dying  under 
age  "  should  be  rejected  as  "  vain  "  or  "  void  "  and  the  will  construed  as 
though  such  provision  had  not  been  inserted  in  it.  A  limitation  over  af- 
ter a  fee  is  by  the  law  as  now  established  held  good  by  way  of  executory 
devise.  If  in  the  case  in  Croke  Eliz.  Richard  had  attained  twenty-one 
and  died  having  no  issue,  by  the  reasoning  of  the  judges  and  the  prin- 
ciples declared,  the  limitation  over  would  have  been  good  as  a  remainder, 


Martin's  lessee  vs.  Koach.  479 

born  of  her  own  body;  then  my  will  and  desire  is  that  all  the  last 
above  real  and  personal  estate  goes  to  James  Martin,  him  and  his 
heirs  forever." 

and  the  estate  of  Richard  gone  because  they  held  "  dying  under  age  "  a 
void  limitation,  and  yet  the  courts  at  this  day  hold  this  limitation  not 
void,  but  of  great  importance  in  ascertaining  the  nature  of  the  estate  de- 
vised, and  would  come  to  a  contrary  conclusion  as  to  the  estate  of  Rich- 
ard at  his  death.  As  the  doctrine  of  executory  devises  grew  into  favor 
and  became  engrafted  by  decision  into  our  jurisprudence,  the  limitation 
"  dying  under  age  "  ceased  to  be  held  as  "  vain  "  and  "  void  "  and  was  laid 
hold  of  as  evincing  that  when  the  testator  in  the  other  contingency  used 
the  words  ''  dying  without  issue "  he  did  not  intend  to  limit  the  term 
"  h  eirs  "  used  in  the  first  part  of  the  devise  to  heirs  of  the  body,  but  by 
introducing  that  other  contingency  to  provide  a  conditional  limitation 
to  another  devisee  not  dependant  merely  on  the  "  dying  without  issue." 

The  devise  in  this  will  independent  of  the  proviso  gives  clearly  an  es- 
tate in  fee — it  is  a  vested  fee — defeasible  only  on  the  contingency  in  the 
proviso.  That  contingency  i$  not  a  condition  precedent,  but  when  it  oc- 
curs it  operates  to  annihilate  the  estate  given  in  the  first  devise  and  to 
carry  into  effect  the  estate  given  in  the  second  devise.  The  estate  in  fee 
first  given  is  only  to  be  defeated  or  changed,  if  the  daughter  "  dies  under 
age  and  without  issue,"  for  the  authorities  are  conclusive  that  the  word 
"  or  "  in  a  devise  like  the  present  is  to  be  taken  conjunctively.  If  she  at- 
tains twenty-one  she  is  to  have  an  estate  in  fee  although  she  may  have  no 
issue.  Is  not  this  clearly  the  intention,  of  the  father,  that  if  his  daughter 
attains  age  the  estate  is  hers  to  do  with  as  she  pleases ;  would  not  this  de- 
sign be  defeated  by  holding  that  she  took  but  an  estate  tail.  Her  fee 
simple  controxxl  of  the  estate  would  be  gone — she  could  not  devise  it — if 
she  had  issue  one  child  would  take  and  the  others  be  excluded ;  and  this 
too  when  the  contingency  on  which  she  was  to  be  deprived  of  an  estate  in 
fee  never  has  occurred  nor  never  can  occur.  Her  estate  in  fee  is, 
by  the  proviso,  not  to  be  defeated  if  she  either  attains  age  or  leaves  is- 
sue; she  has  left  issue;  the  esta+e  therefore  first  given  is  not  altered. 
To  hold  this  to  be  an  estate  tail  would  change  the  character  of  the  devise 
against  the  express  words  of  the  will  and  the  design  of  the  testator — you 
A\ould  impair  the  extent  of  the  devise  to  the  daughter  if  you  permitted 
the  word  "  issue  "  used  in  the  proviso  to  restrict  the  word  'Tieirs"  to  heirs 
of  the  body,  when  it  is  apparent  from  the  other  branch  of  the  proviso  that 
it  is  not  to  be  impaired  or  the  devise  in  fee  defeated,  if  she  attains  twenty- 
one  although  she  may  leave  no  heirs  of  the  body.  Had  the  proviso  con- 
tained the  single  contingency  of  the  daughter  "dying  before  she  has 
heirs  lawfully  begotten  of  her  body  "  there  could  be  no  question  that  the 
fee  first  given  would  have  been  cut  down  to  an  estate  tail  and  the  limita- 
tion over  would  be  void  as  an  executory  devise  as  being  too  remote  and 
founded  on  an  indefinite  failure  of  issue,  for  there  being  but  a  single  con- 
tingency it  would  be  manifest  that  heirs  of  the  body  were  the  only  heirs 
the  testator  intended  should  inherit:  but  where  he  has  said  in  effect,  if 
not  in  terms,  that  the  daughter  shall  not  be  deprived  of  an  estate  in  fee  if 
she  left  issue  although  she  might  not  arrive  at  twenty-one,  or  if  she  ar- 
rived at  twenty-one,  although  she  might  not  have  had  or  left  issue,  and 
she  has  either  reached  twenty-one  or  left  issue,  to  hold  that  her  fee  was 
reduced  to  an  estate  tail,  would  do  violence  to  the  testator's  intention. 

When  to  the  words  "  dying  without  issiae  "  there  is  added  "  or  before  21 
years  of  age  "  these  latter  qualify  the  estate  first  given  with  a  collateral 


480  Mabtin's  lessee  vs.  Boaoh. 

The  plflf.  began  his  show  by  a  possession  in  Hannah  Heavilo  as  far 
back  as  the  year  1788.  She  continued  in  possession  until  her  death, 
in  1796,  and  devised  the  premises  in  dispute  to  her  three  sons,  John, 

determination  and  one  different  from  the  mere  "dying  without  issue" 
and  carry  into  effect  a  conditional  limitation  to  another  if  the  prescribed 
contingency  (dying  under  age,  also  without  issue)  happen,  and  if  it  does 
happen  a  defeasance  of  the  fee  simple  is  effected — but  if  the  entire  con- 
tingency, dying  both  without  issue  and  under  age  does  not  happen,  the 
estate  as  first  given  to  the  daughter,  her  heirs  and  assigns  forever,  is  not 
altered  or  abridged  or  reduced  to  an  estate  in  tail.  The  event  on  which  it 
was  to  be  divested  has  never  taken  place  nor  cannot,  for  the  daughter  died 
leaving  issue,  and  it  was  only  to  be  divested  if  she  left  no  issue — if  she 
left  issue  or  reached  the  age  the  first  estate  was  to  stand  and  that  was  a 
fee;  she  has  left  issue  and  had  therefore  an  estate  in  fee  at  her  death  in 
the  lands  devised.  The  daughter  therefore  took  an  estate  in  fee  under 
this  will  with  an  executory  devise  over  to  the  brother  of  the  testator  in 
the  event  of  her  dying  under  age  and  without  issue — the  devise  over  was 
good  —  it  was  not  to  take  place  on  an  indefinite  failure  of  issue  but  a 
failure  within  the  daughter's  minority,  the  age  of  21  years,  and  was  not 
therefore  too  remote.  The  devise  over  has  failed,  inasmuch  as  the  daugh- 
ter did  not  die  under  21  without  issue:  on  her  death  leaving  issue,  the 
devise  in  fee  became  absolute. 

This  construction  of  this  devise  certainly  conflicts  with  the  case  of 
Soulle  vs.  Gerrard,  but  that  case  or  the  principle  it  assumes  cannot  now 
be  recognized  as  law,  and  is  in  direct  contradiction  to  almost  all  the  cases 
of  a  similar  character  which  have  been  since  decided  in  the  courts  in  Eng- 
land and  in  this  country.  In  one  case  that  of  Hilliard  vs.  Jennings,  re- 
ported in  1  Lord  Raymond  505,  12  Modern  276  Lord  Holt  in  referring  to 
Soulle  vs.  Gerrard  appeared  to  acquiesce  in  the  decision  there  made  of  the 
estate  being  an  entail,  but  the  case  of  Hilliard  vs.  Jennings  was  decided 
on  another  point  the  want  of  competent  witnesses  to  the  will.  Brown- 
sord  vs.  Edwards,  2  Vezey  243,  was  a  devise  to  the  son  and  the  heirs  of 
his  body  and  not  in  fee,  and  lord  Hardwiche  in  construing  it  an  estate 
tail  said  he  would  not  have  done  this  if  the  first  devise  had  been  to  A. 
and  his  heirs,  for  on  such  a  contingency  courts  had  not  changed  heirs 
into  heirs  of  the  body.  I  have  not  been  able  to  find  any  subsequent  case 
which  by  express  adjudication  of  the  point  confirms  the  principle  in  the 
case  of  Soulle  vs.  Gerrard  that  such  a  devise  gives  an  estate  tail;  but  on 
the  contrary,  wherever  the  limitation  over  has  depended  on  a  contingency 
like  that  in  this  will  which  has  a  double  aspect ;  or  where  two  conditions, 
qualifications  or  circumstances  are  to  occur,  the  courts  uniformly  refuse 
to  consider  the  devise  as  creating  an  estate  tail.  Chief  Justice  Mansfield 
in  Eastman  vs.  Baker,  1  Taunton  179  says  "  an  estate  tail  has  never  been 
given  upon  a  jvill  like  this  where  one  of  the  contingencies  is  the  event  of 
a  devisee  dying  under  age." 

The  following  are  some  of  the  many  cases  found  in  the  books  declaring 
a  devise  like  that  in  the  present  will  to  give  an  estate  in  fee  and  not  in 
tail.  Mr.  Feame  in  2  vol.  p.  18,  cites  from  1  KoUe's  Ab.  334  the  case  of 
Haniury  vs.  Cocherel  where  a  father  devised  to  two  sons  in  fee,  each  a 
tract  of  land,  with  a  proviso  that  if  either  should  die  before  he  married 
or  before  he  attained  twenty-one,  and  without  issue,  then  over  to  the  sur- 
vivor— in  which  it  was  held  that  the  sons  took  in  fee  subject  to  a  limita- 
tion to  the  survivor  for  life  in  case  of  either  dying  unmarried  or  under 
twenty-one  without  issue.    In  1684,  the  case  of  Price  vs.  Hunt,  reported 


Martin's  lessee  vs.  Koacii.  481 

Roderick,  and  Edward  Heavilo,  in  fee,  to  be  divided,  two  shares  to 
John  and  one  share  each  lo  the  others.  She  nominated  John  and 
Roderick  her  executors.     John  and  Edward  entered  into  possession 

in  PoUexfen  645,  and  cited  by  Mr.  Plumer  and  Mr.  Hargrave  in  their  ar- 
gument in  the  case  of  Fairfield  vs.  Morgan,  5  Bos.  &  Pul.  45,  was  de- 
cided :  A.  devised  lands  to  his  wife  till  his  son  B.  should  attain  fourteen, 
and  if  she  should  die  before  that  time  then  to  B.  his  heirs  and  assigns 
forever ;  and  in  case  his  son  should  die  "  before  he  should  attain  the  age 
of  twenty-one  years  or  have  issue  of  his  body  lawfully  begotten  living  "^ 
then  to  the  wife  for  life,  and  after  her  death  to  the  testator's  brother-in- 
law  and  his  heirs.  The  mother  died  after  B.  came  to  fourteen,  but  before 
he  arrived  at  twenty-one:  B.  attained  21,  and  died  without  issue.  The 
heir  of  B.  recovered  the  land,  of  course  on  the  ground  that  B.  took  a  fee, 
for  there  was  no  issue.  In  the  case  of  CoUinson  vs.  Wright,  Siderfin 
146-8;  4  Bacon  251  the  testator  devised  his  land  to  his  son  an^  heir,  and 
if  he  dies  before  his  age  of  twenty-one  years  and  without  issue  of  his 
body  then  living,  the  remainder  over.  The  son  arrives  at  21  and  sells  the 
land  and  the  sale  held  good  for  he  had  a  fee  simple  presently,  the  estate 
tail  being  to  commence  on  a  subsequent  contingency.  In  1743,  the  case 
of  Barker  vs.  Sureties  was  decided  in  the  Court  of  Kings  Bench  and  is  to 
be  found  in  2  Strange  1174.  That  was  a  devise  to  a^grandson,  his  heirs 
and  assigns,  but  in  case  he  dies  before  he  attains  the  age  of  twenty-one 
years  or  marriage  and  without  issue,  then  over.  The  grandson  attained 
21  and  died  without  ever  having  married.  It  was  held  that  the  attaining 
21  was  a  performance  of  the  condition  and  vested  the  estate  absolutely  in 
the  grandson.  In  the  case  of  Walsh  vs.  Peterson  decided  in  the  court  of 
chancery  in  1744,  and  reported  in  3  A  tTcy.  193,  and  also  in  9  Modern  444, 
which  was  a  devise  of  two  thirds  of  all  the  testator's  real  estate  to  his  son, 
his  heirs  and  assigns  forever;  with  a  proviso  that  if  his  son  die  before  he 
shall  attain  21  years  or  without  issue  [In  9  Modern  it  is — and  without  is- 
sue'] then  to  the  testator's  wife,  her  heirs  and  assigns.  Lord  Hardwiche 
held  it  a  vested  fee  in  the  son,  as  he  had  attained  21,  though  he  died  with- 
out issue,  and  descended  to  his  heir  at  law.  In  1746,  the  same  lord  chan- 
cellor decided  the  case  of  Framlinqham  vs.  Brand  which  is  to  be  foimd 
in  3  Athy.  390,  and  1  Wihon  140.  That  was  a  devise  to  the  testator's  son 
Robert,  his  heirs  and  assisrns  forever ;  and  in  case  he  shall  happen  to  die 
in  his  minority,  and  (in  Wilson  or^  unmarried,  or  without  issue,  then  to 
his  son  Henry  and  his  heirs:  Robert  came  of  age  and  married  but  died 
without  issue,  leaving  debts  due  by  specialty.  It  was  held  that  Robert 
took  a  fee  with  an  executory  devise  over  to  Henry,  and  that  on  coming  of 
age,  the  limitation  over  was  defeated,  the  estate  vested  in  Robert  abso- 
lutely and  was  subject  to  his  debts  due  by  specialty.  In  Beachcroft  et  al 
vs.  Broome  decided  in  1791,  4  Term  441,  it  was  held  that  under  a  devise 
to  A.  and  his  heirs,  but  if  he  die  without  settling  or  disposing  of  the 
same,  or  without  issue,  then  over,  that  A.  by  settling  or  disposing  of  the 
estate  in  his  lifetii^e  defeated  the  limitation  over,  and  that  he  had  the 
ricrht  under  such  a  devise  to  do  so.  The  case  of  Fairfield  vs.  Morgan  in 
1805,  5  Bos.  &  Pull.  38,  originated  in  the  court  of  common  pleas  in  Ire- 
land, and  was  decided  with  the  concurrence  of  all  the  judges  in  that  court. 
On  a  writ  of  error  taken  to  the  king's  bench  in  Ireland  it  was  affirmed  by 
that  court  one  judge  only  dissenting.  On  a  writ  from  the  house  of  lords, 
it  was  heard  at  the  bar  of  that  house  on  a  very  able  argument,  and  the 
opinion  of  the  judses  asked  for  and  taken,  and  on  being  given  the  pre- 
vious judgments  were  affirmed.    The  testator  in  that  case  devised  all  his 


482  Martin's  lessee  t'.«.  T?oacii. 

after  the  death  of  their  mother:  Roderick  went  otf  and  has  not  been 
heard  of  for  many  years.  Mrs.  Heavilo's  will  was  duly  proved  on 
the  fourth  January,  1T9C,  and  to  prove  the  grant  of  letters  testamen- 

estates  to  his  brother,  subject  to  an  annuity  of  fifty  pounds  to  his  mother 
— but  if  the  brother  should  die  under  the  age  of  21  years  or  without  issue 
living  at  his  death,  then  over  to  his  mother.  The  brother  attained  21, 
conveyed  the  estates  and  died  without  issue.  Held  that  the  word  "  or  " 
must  be  construed  "  and  "  and  that  the  mother  took  nothing  on  the  death 
of  the  brother  as  on  attaining  21  the  absolute  estate  vested  in  him.  In 
this  opinion  all  the  judges  both  in  England  and  Ireland  concurred  with 
one  single  exception.  In  9  East  366  is  the  case  of  the  lessee  of  Wilkins 
vs.  Kimmeys  which  was  a  devise  to  A.  for  life — remainder  to  B.  and  her 
heirs,  but  if  B.  die  before  A.  or  without  heirs  of  her  body,  over  to  C. :  or 
was  construed  "  and  "  and  it  was  held  that  the  devise  over  could  not  take 
effect  unless  B.  died  before  A.  and  without  issue.  The  devise  to  A.  was 
held  to  be  a  fee  if  the  property  was  freehold,  of  which  there  was  some 
question — (See  the  opinions  of  lord  Ellenborough,  chief  justice,  and  jus- 
tice Blanc.)  The  case  of  Eastman  vs.  Baker  in  1808,  1  Taunton  174,  was 
a  devise  to  a  daughter  and  her  heirs  forever,  but  if  she  should  die  with- 
out issue  or  not  having  attained  21,  then  over,  was  held  to  be  an  estate  in 
fee  with  an  executory  devise  over  contingent  on  the  daughter  dying  in  the 
lifetime  of  the  mother  under  21  and  without  issue.  The  lessee  of  Day  vs. 
Day,  16  Ea^t  67  was  a  devise  to  a  son  in  fee ;  but  in  case  the  son  die  un- 
der 21,  or  shall  have  no  issue  male  or  female,  then  over  to  his  daughter 
in  tail,  she  being  sun'iving.  The  son  attained  21,  left  issue  and  devised 
the  estate  to  his  wife.  The  son  of  the  devisee,  the  heir  in  tail,  brought 
the  ejectment  and  it  was  held  that  the  son  took  under  the  devise  an  estate 
in  fee  and  not  an  estate  tail. 

The  principles  established  in  these  cases  have  been  recognized  and  sus- 
tained by  several  decisions  in  the  United  States.  In  Ray  vs.  Enslin  in 
1799  in  2  Masf^.  Rep.  5.54,  where  lands  were  devised  to  testator's  wife  for 
life,  and  after  her  decease,  to  his  daughter  and  her  heirs  forever;  but  in 
case  the  daughter  should  die  before  she  came  to  age  or  had  lawful  heir  of 
her  body,  then  over,  it  was  held  that  the  daughter  took  an  estate  in  fee 
simple,  defeasible  on  the  contingency  provided  for.  This  case  is  cited  in 
5  liinney  255,  and  in  4  Bacon  (Wilson's  Ed.)  293,  as  is  also  the  case  of 
Richardson  vs.  Noyes,  2  Mass.  Rep.  56,  to  the  same  point.  In  Ray  vs. 
Enslin  the  daughter  attained  age,  had  issue  and  alienated  the  land,  and 
the  question  in  this  case  was  between  the  issue  and  alienee  of  the  daugh- 
ter. Hauer's  lessee  vs.  Shitz,  in  1807,  2  Binney  532,  was  a  devise  to  a  son 
and  his  heirs  forever,  subject  to  the  payment  of  a  sum  of  money  to  his 
brother;  and  in  case  the  son  should  die  under  21  or  without  issue,  then 
over:  and  was  held  a  fee  simple  in  the  son  with  an  executory  devise  to 
take  effect  on  his  dying  under  age  and  without  issue  and  that  as  the  son 
attained  21,  though  he  died  without  issue,  the  estate  descended  to  his 
heir.  In  1812,  Holmes  vs.  Holmes'  lessee  was  decided  and  is  reported  in 
5  Binney  252.  It  was  a  devise  to  a  grandson,  his  heirs  and  assigns  for- 
ever, to  be  entered  on  and  taken  possession  of  as  soon  as  he  arrives  at  21, 
or  marries.  But  if  he  die  under  age  or  without  issue,  then  over :  and  it 
•was  held  that  "  or  "  should  be  read  "  and  "  and  that  the  devisee  having  at- 
tained 21,  his  estate  became  indefeasible  and  descended  to  his  heir  at  law. 
In  1810  in  the  state  of  Newyork  the  case  of  Jackson  on  the  demise  of 
Burham  and  wife  v««.  Blansham  was  decided  and  is  found  in  6  Johnson 
54.    The  devise  was  to  six  children  in  fee  in  equal  shares :  but  if  any  one 


Martin's  lessee  vs.  Eoach.  483 

tary  the  plff.  gave  in  evidence  a  testamentary  bond  of  the  same  date, 
filled  up  in  the  names  of  John  and  Roderick  Heavilo  as  principals, 
and  James  Elliott  as  surety,  and  conditioned,  in  the  usual  form,  for 
the  faithful  administration  of  Hannah  Heavilo's  estate  by  John  and 
Roderick  Heavilo,  her  executors.  This  bond  was  executed  by  John 
Heavilo  and  James  Elliott  only.  John  Heavilo's  by  his  last  will  and 
testament,  duly  proved  and  allowed,  constituted  Benjamin  Johnson 
his  executor,  who  took  out  letters  and  gave  bond  and  surety  in  due 
form. 

The  pfff.  then  offered  in  evidence  the  petition  of  Benjamin  John- 
son, executor  of  John  Heavilo,  who  was  the  executor  of  Hannah 
Heavilo  to  the  orphans'  court  of  Sussex  county  for  an  order  to  sell  the 
land  of  the  said  Hannah  Heavilo  for  the  payment  of  her  debts,  the 
order  thereupon,  and  the  return  of  the  sale  made  to  Mary  Fergus. 
Objected  to. 

Bayard.  Hannah  Heavilo  left  as  her  executors  John  and  Rode- 
rick Heavilo.  Roderick  never  renounced,  and  he  was  entitled  at 
any  time  to  take  out  letters.  The  execution  of  the  will  survived  to 
him  on  the  death  of  John  Heavilo.  Benjamin  Johnson  as  his  execu- 
tor had  no  right  to  interfere  with  the  administration  of  Hannah  Hea- 
vilo's estate,  and  the  proceedings  in  the  orphans'  court  on  his  petition 
were  altogether  irregular  and  void.  2  vol.  D.  L.  891.  The  entire 
authority  survives  to  the  surviving  executor,  (Toller,  67,  40-41, J 
and  even  if  one  renounces  he  may  take  out  letters  after  the  death 
of  the  other.  Unless  it  can  be  shown  that  Roderick  died  before 
John  Heavilo,  the  execution  of  the  will  devolved  on  him  at  John's 
death.  And  the  grant  of  letters,  if  proved  at  all  in  this  case,  is  a 
joint  authority  to  John  and  Roderick,  for  the  testamentary  bond  is 
conditioned  for  the  faithful  administration  of  this  estate  by  them 
both,  and  styles  them  both  executors. 

Frame,  for  plff.  No  doubt  at  common  law,  where  there  are  joint 
executors  and  one  dies,  the  execution  survives  to  the  other;  but  our 

of  them  should  die  without  issue  or  before  they  arrive  to  full  age  then  his 
share  should  go  over  to  the  survivors :  one  of  them  attained  21,  mortgaged 
his  share  and  died  without  issue.  It  was  held  that  the  devise  to  him  be- 
came absolute  on  his  arriving  at  21  and  that  the  holders  under  his  mort- 
gage had  complete  title.  In  Lillchridge  vs.  Aide,  1  Mason  224,  cited  in  2 
Peters  Con.  Rep.  568  it  was  held  that  a  devise  over  after  a  fee  in  case 
the  original  devisee  should  die  before  he  came  of  age  or  without  issue  was 
a  good  executory  devise  and  that  the  original  devise  became  an  absolute 
fee  by  the  devisee  attaining  age  or  dying  having  issue.  In  1813  the  case 
of  Barnitz's  lessee  vs.  Casey  was  decided  by  the  supreme  court  of  the 
United  States  and  is  reported  in  7  Cranch  456,  and  2  Peters  Con.  Rep. 
561.  Catharine  Barnitz  by  her  will  devised  to  John  McConnell  in  fee  two 
tracts  of  land  and  provided  that  if  John  McConnell  should  die  under  aore 
and  without  issue,  that  they  should  go  to  John  B.  Hammond  in  fee.  John 
McConnell  attained  twenty-one,  married,  had  issue  and  afterwards  died 
leaving  no  issue  to  survive  him.  Judge  Story  in  delivering  the  opinion 
of  the  court  says,  "  By  the  arrival  of  John  McConnell  at  the  age  of  twenty- 
one  years  the  estates  devised  to  him  immediately  become  absolute  estates 
in  fee  simple.  He  adds  to  have  defeated  the  estate  over,  it  was  sufficient 
either  that  he  attained  his  full  age  or  died  under  age  having  issue,  and 
that  on  this  point  the  authorities  were  conclusive.  Chancellor  Kent  in 
the  4th  vol.  of  his  commentaries  269  in  treating  of  the  differences  between 


484  Mabtin's  lessee  vs.  Roach. 

act  of  assembly  regulates  this  matter  for  us  by  providing  (2  Del.  L. 
891)  that  all  letters  testamentary  shall  be  void  without  bond  and 
surety.  Eoderick  Heavilo  never  gave  bond;  the  grant  of  letters  to 
him  was  therefore  void,  and  the  whole  authority  went  to  John,  who 
complied  with  the  law  by  giving  bond  and  surety.  And  I  deny  that 
Roderick  had  the  right,  afterward,  and  whilst  the  estate  was  in  the 
course  of  administration,  to  interfere  with  that  administration,  even 
on  giving  bond ;  much  less  could  he  avoid  the  acts  of  the  other  execu- 
tor. At  all  events,  unless  he  does  give  bond  he  can  have  no  legal 
authority  as  executor,  and  the  executor  who  did  give  bond  and  those 
who  legally  represent  him  can  proceed  in  the  settlement  of  the  estate. 
John  Heavilo  first,  and,  after  his  death,  Benjamin  Johnson,  his  exec- 
utor, were  the  only  legal  representatives  of  Mrs.  Ileavilo's  estate,  and 
as  such  were  authorized  to  apply  to  the  orphans'  court  for  an  order  to 
sell  her  lands  for  the  payment  of  debts.  Again.  I  submit  that  at 
this  time  it  is  not  competent  for  the  court  in  this  way  to  inquire  into 
and  reverse  the  proceedings  of  the  orphans'  court.  That  court 
had  jurisdiction  of  the  subject;  it  was  competent  for  it  to  decide  the 
questions  now  raised,  whether  John  Heavilo  was  the  sole  executor  of 
his  mother;  whether  Roderick  was  excluded,  either  from  not  having 
given  bond,  or  from  his  subsequent  death,  which  may  have  appeared 
to  that  court;  and  whether  Benjamin  Johnson,  as  the  executor  of 
John  Heavilo,  was  not  the  proper  representative  of  Hannah  Heavilo. 
And  its  decision  of  these  questions  ought  not  to  be  controverted  in 
this  collateral  way. 

Clayton,  for  deft.  The  act  of  assembly  (1  Del.  L.  281)  only 
authorizes  the  orphans'  court  to  order  a  sale  on  the  application  of  the 
executor.  In  terms  the  act  does  not  give  the  same  power  to  the 
executor  of  an  executor.  The  counsel  then  is  driven  to  the  common 
law  for  the  principle  that  an  executor  of  an  executor  represents  the 
first  testator,  and  the  moment  he  gets  there  for  this  principle  he  is 
governed  by  the  other,  to  wit,  that  on  a  joint  administration  the  ex- 
ecution of  the  will  goes  to  the  survivor  and  not  to  the  executor  of  a 
deceased  executor.  We  come  then  to  the  question,  was  John  Heavilo 
the  legally  constituted  executor  of  Hannah  Heavilo?  I  deny  it,  and 
I  say  that  the  letters  granted  to  him  were  absolutely  void.  The  bond 
is  drawn  up  in  the  name  of  John  and  Roderick  Heavilo,  and  the  con- 
dition is  to  secure  the  faithful  administration  of  the  estate  by  both, 
jointly.  It  was  signed  by  John  only,  and  by  the  surety.  The  grant 
of  letters  upon  it  either  conferred  a  joint  power  or  none.  It  could 
not  confer  a  several  power  to  John,  for  such  was  not  the  condition  of 
the  bond.  The  truth  is,  it  conferred  no  power  to  any  one :  the  bond 
was  void,  and  the  grant  of  letters  void.  But  there  is  no  evidence  that 
letters  were  ever  granted  even  to  John  Heavilo.  The  letters  them- 
selves are  not  exhibited,  nor  is  any  register  of  the  grant  produced. 
All  rests  on  this  irregular  and  void  bond.  We  do  not  controvert  any 
matter  judicially  decided  by  the  orphans'  court.     These  orders  of  sale 

a  remainder  and  an  executory  devise  says,  one  is,  that  by  an  executory 
devise  "  a  fee  may  be  limited  after  a  fee,  as  in  the  case  of  a  devise  of  land 
to  B.  in  fee  and  if  he  dies  without  issue  or  before  the  age  of  twenty-one, 
then  to  C.  in  fee."  He  selects  this  as  his  example  of  an  estate  in  fee. 
with  a  good  executory  devise  and  beyond  all  doubt  no  estate  tail. 


Martin's  lessee  vs.  Roach.  485 

are  made  ex  parte,  on  the  application  of  the  executor  or  the  person 
presenting  himself  as  the  executor.  That  court  never  decided  the 
questions  now  raised. 

Frame.  The  bond  we  offer  is  a  record.  It  comes  from  the  regis- 
ter's office.  No  registry  of  the  grant  of  letters  can  be  found  so  far 
back  as  1796;  indeed  there  is  no  law  now  requiring  such  registry, 
and  the  practice  to  this  day  is  different  in  the  different  counties  on 
this  subject.  As  to  the  letters  themselves,  they  are  never  retained 
in  the  office,  but  given  out  to  the  executor.  The  testamentary  bond 
therefore  is  in  this  case  the  best  and  the  only  evidence  which  can  be 
had  of  the  grant  of  letters.  It  states  the  fact  that  letters  had  been 
granted  to  John  and  Koderick  Heavilo,  and  it  appears  from  the  face 
of  the  bond  that  Roderick  did  not  execute  it.  The  grant  to  him  was 
therefore  void:  was  it  void  also  as  to  the  other?  The  object  of  taking 
these  bonds-  is  to  secure  the  public ;  they  should  be  construed  so  as  to 
attain  this  end  and  not  to  defeat  it.  Is  not  the  meaning  of  the  act  of 
assembly  that  the  grant  of  letters  shall  be  void  as  to  those  who  do  not 
^ive  bond,  but  good  for  those  who  do?  Could  John  Heavilo  ever 
set  up  the  defence  to  an  action  on  this  bond,  that  he  was  jointly  an 
executor  with  another,  and  therefore  not  liable? 

By  the  Court. 

Harrington,  Justice. 

The  question  now  submitted  to  the  court  is  of  more  consequence 
in  its  general  bearing  than  in  its  operation  on  the  present  case.  Re- 
garding either  the  policy  of  the  law  or  the  known  rules  of  evidence 
applicable  to  the  question,  we  are  perfectly  clear  that,  on  principle, 
the  objection  to  the  evidence  now  offered  ought  not  to  be  sustained. 

In  developing  his  title  the  plff.  has  set  out  with  the  proof  of  a  pos- 
session many  years  ago  in  Hannah  Heavilo.  To  show  the  transfer 
of  title  from  her  to  Mary  Fergus,  under  whom  he  claims,  he  offers 
in  evidence  an  order  of  the  orphans'  court,  made  on  the  application  of 
Benjamin  Johnson,  the  executor  of  John  Heavilo-,  who  was  executor 
of  Hannah  Heavilo,  for  the  sale  of  these  lands  for  the  payment  of 
-debts,  and  the  proceedings  upon  that  order  under  which  Mary  Fergus 
hecame  the  purchaser.  It  is  objected  to  this  evidence  that  Benjamin 
Johnson  was  not  the  representative  of  the  estate  of  Hannah  Heavilo, 
and  had  no  authority  to  sell  these  lands;  in  short,  that  the  order  of 
the  orphans'  court  directing  the  sale  was  irregular  and  void,  because 
made  on  the  petition  of  a  person  who  was  not  legally  constituted  the 
<3xecutor  of  Mrs.  Heavilo.  By  her  will  she  constituted  her  two  sons, 
John  and  Roderick,  to  be  her  executors;  whether  letters  were  in  fact 
granted  to  one  or  both  of  them  is  not  clearly  shown,  the  only  evi- 
dence of  the  grant  of  letters  being  a  testamentary  bond,  filled  up  in 
the  name  of  both,  and  conditioned  for  the  faithful  administration 
of  the  estate  by  both,  but  signed  only  by  John  Heavilo  and  by  his 
surety.  Roderick  Heavilo,  it  is  proved,  left  the  state  shortlv  after 
the  death  of  his  mother,  and  has  never  returned.  John  Heavilo  died, 
having  appointed  Benjamin  Johnson  his  executor,  who  took  out  let- 
ters, and  as  the  executor  of  John  Heavilo,  who  was  executor  of  Han- 
nah Heavilo,  obtained  the  order  which  is  now  objected  to. 

It  is  conceded  that  the  entering  into  bond  and  giving  surety  is  ne- 
cessary to  the  appointment  of  an  executor,  and  that  the  grant  of  let- 
ters without  such  bond  is  void.  Roderick  Heavilo  was  therefore 
•never  actually  the  executor  of  his  mother.     Whether  the  bond  given 


486  Majitin's  lessee  vs.  Koach. 

by  John  Heavilo  in  the  name  of  both  will  sustain  the  grant  of  letters 
to  him  alone,  and  whether  the  administration  passed  to  his  executor 
or  survived  to  Roderick,  or  was  void  as  to  both,  are  questions  not 
necessarily  now  to  be  decided,  as  we  rest  our  o|)inion  on  other  consid- 
erations. Thought  it  may  be  remarked  that  after  this  lapse  of  time 
much  would  be  presumed  by  a  court  and  jury  to  supply  defects  in 
proceedings,  and  sustain  titles  acquired  under  the  orders  and  decrees 
of  a  court  of  competent  jurisdiction. 

The  orphans'  court  is  a  court  of  peculiar  and  exclusive  jurisdiction 
over  the  subject  matter  of  this  order;  and,  of  course,  over  the  inci- 
dents to  the  proper  exercise  of  this  jurisdiction.     The  act  of  assem- 
bly (1  vol.  281)  authorizes  it  to  call  executors  to  an  account  of  their 
administration,  and  if  the  personal  estate  shall  be  found  insufficient 
for  the  pa3anent  of  debts,  and  the  heirs  or  devisees  of  the  decedent 
shall  refuse  or  neglect  to  pay  them,  to  make  an  order  for  the  sale  of 
the  decedent's  lands,  all  which  sales  "shall  be  deemed  as  available  as 
if  the  decedents  had  sold  and  conveyed  the  same  lands  in  their  life 
time."     With  such  authority  to  proceed  in  the  premises  and  to  de- 
cree a  sale  of  the  lands,  would  any  irregularity  in  the  proceedings 
vitiate  the  title  under  the  court,  and  could  such  irregularity  be  in- 
quired into  in  a  collateral  way?     The  proceedings  in  the  orphans' 
court  was  said  to  be  ex-parte;  it  is  nevertheless  a  proceeding  in  rem, 
which  by  the  act  of  assembly  passes  all  the  title  of  the  decedent  in 
the  land,  and    concludes    every  body.      Roscoe    Ev.    103 ;    Levinz, 
236.    1  Stark.  Ev.  229 ;  "  It  is  evidently  essential  to  the  existence  of 
a  jurisdiction  of  this  nature  that  its  adjudications  upon  the  subject 
matter  should  be  final,  not  only  in  the  courts  in  which  they  are  pro- 
nounced but  in  all  other  courts  where  the  same  question  arises.     It 
would  not  only  be  inconsistent  that  the  decision  in  rem  should  not 
be  final  in  the  court  in  which  it  is  pronounced,  but,  from  the  nature 
of  the  subject  matter,  mischievous  and  inconvenient.     Although  the 
parties  who  are  in  a  greater  or  less  degree  affected  by  the  conse- 
quences of  the  judgment  may  change,  the  subject  matter  is  immut- 
able, and  therefore  the  decision  upon  it  ought  not  to  be  liable  to  be 
disturbed.     And  it  ought  to  be  binding  in  other  courts,  in  order  to 
prevent  inconsistency,  and  to  support  the  jurisdiction  of  the  court  in 
which  that  sentence  has  been  pronounced,  for  it  would  be  in  vain  for 
a   court  of  exclusive  jurisdiction  to  decide,   if  its  decisions   upon 
the  subject  matter  were  to  be  wholly  disregarded."     It  is  doubtful 
whether  any  but  the  heir  at  law  or  a  creditor  could  object  to  the 
decree,  even  in  the  orphans'  court  or  by  way  of  appeal,  and  it  must 
be  regarded  as  conclusive  upon  them  until  vacated  or  reversed  in 
a  regular  manner.     As  a  judgment  of  the  court,  the  propriety  of  the 
order  of  sale  of  Mrs.  Hcavilo's  land  for  the  payment  of  her  debts  is 
as  uncontrovertible  in  any  collateral  proceeding  as  a  judgment  at 
law  binding  on  the  land  and  rendering  it  liable  to  sale.       Suppose 
the  case  of  a  judgment  recovered  at  law  against  an  executor  and  a 
sale  on  such  judgment.     Could  a  title  derived  under  such  a  judg- 
ment be  invalidated  by  showing  an  informality  in  the  executor^s 
bond?    And  if  the  objection  here  made  be  considered  available,  you 
had  as  well  require  proof  that  the  executor  filed  before  the  orphans' 
court   the  accounts  of  his  administration   required  by  the   act  of 
assembly,  or  that  the  heirs  at  law  or  devisees  refused  or  neglected 
to  pay  the  deficiency,  which  are  pre-requisites  to  the  order  for  a 


martin's  lessee  vs.  Roach.  487 

pale.  There  is  no  stopping  place  if  you  once  get  behind  the  order 
of  the  orphans'  court  and  open  the  door  for  objection  to  its  pro- 
ceedings. The  principle  is  immensely  important  in  its  general  bear- 
ings. Many  of  the  titles  to  land  in  this  state  are  derived  immedi- 
ately or  remotely  under  a  sale  by  order  of  the  orphans'  court,  and  if 
these  titles  are  liable  to  be  overturned  by  any  defect  in  the  mode  of 
proceeding,  however  slight,  which  may  be  discovered  after  a  lapse 
of  even  thirty-five  years,  the  consequences  to  the  community  would 
be  alarming.  A  defect  in  the  executor's  bond,  it  is  here  insisted, 
shall  have  this  operation.  A  stronger  example  could  not  1)e  pre- 
sented of  the  danger  of  looking  beyond  the  decree  of  the  court. 
What  purchaser  under  a  sale  in  the  orphans'  court  ever  examines  into 
the  validity  of  the  executor's  appointment?  And  can  he  reasonably 
be  expected  to  do  so?  K  is  conceded  that  the  existence  of  a  legally 
constituted  executor  is  necessary  to  the  order  of  sale,  but  no  more 
essential  than  the  filing  an'  account  of  his  administration  of  the 
personal  assets;  the  establishing  of  a  deficiency;  the  refusal  or  neglect 
of  the  devisees  or  heirs  at  law  to  pay  the  debt;  or,  (under  the  present 
law)  the  giving  a  new  bond  by  the  executor.  All  these  are  matters 
for  the  orphans'  court  to  examine  into  and  decide  upon;  and  any 
matter  necessarily  decided  by  that  court  in  making  its  decree  cannot 
ever  afterwards  be  questioned  in  any  collateral  proceeding.  The 
representative  relation  of  Benjamin  Johnson  to  the  estate  of  Hannah 
Heavilo  was  a  matter  necessary  to  be  decided  by  the  orphans'  court 
in  this  proceeding;  for  the  order  of  sale  could  have  been  made  only 
on  the  application  of  the  representative  of  the  estate. 

On  this  general  ground  we  are  of  opinion  that  the  record  and  pro- 
ceedings of  the  orphans'  court  may  be  given  in  evidence;  but  per- 
haps this  case  might  also  be  decided  on  another  fact  appearing  from 
the  record.  It  is  clear  that  at  the  time  of  making  the  order  of  sale 
no  one  could  have  objected  to  it  on  the  ground  now  taken,  but  the 
two  other  devisees  Roderick  and  Edward  Heavilo;  and  the  record 
shows  that  they  were  notified  and  consented  to  the  order. 

Evidence  admitted.     Exception  prayed  and  granted. 

The  record  showed  a  sale  under  the  order  of  the  Orphans'  court  of 
the  premises  now  in  possession  of  the  deft.  Roach  to  James  Martin 
as  the  agent  of  Mary  Fergus  on  the  14th  June,  1800.  Sale  approved 
and  confirmed. 

Plff.  then  offered  in  evidence  the  record  of  the  deed  of  Benjamin 
Johnson,  executor  of  John  Heavilo,  who  was  executor  of  Hannah 
Heavilo  to  Mary  Fergus,  date  2?d  November,  1800— proved  21st 
April,  1802,  and  recorded,  but  there  was  no  date  of  the  time  of  re- 
cording.    Objected  to. 

Bayard.  Xo  paper  entered  on  the  records  of  the  recorder's  office 
thereby  becomes  evidence  unless  such  entry  be  made  by  the  authority 
of  law.  The  law  requires  deeds  to  be  recorded  within  a  year  after 
their  execution,  1  vol.  D.  L.  220,  and  this  deed  not  having  ])cen  re- 
corded withir  that  time  is  not  evidence  without  the  formal  proof  of 
its  execution.  The  deed  is  not  invalidated  by  not  being  recorded  in 
due  time,  but  the  record  of  it  ^fter  the  year  is  not  authorized  and 
is  therefore  not  evidence.  The  deed  itself  must  be  produced  and 
proved  as  at  common  law. 


488  Mabtin's  lessee  vs.  Roach. 

Frame.  The  language  of  the  old  act  is  that  deeds  may  be  recorded 
within  one  year  after  the  execution,  and  not  after  they  bear  date. 
This  deed,  though  dated  in' Nov.  1800,  was  not  proved  or  entitled  to 
record  until  1802.  The  time  therefore  of  its  execution  within  the 
meaning  of  the  law  and  for  the  purpose  of  recording  is  not  so  ap- 
parent from  the  face  of  the  deed;  and  much  would  be  presumed  after 
euch  a  length  of  time.  But  the  point  has  always  been  considered 
as  settled  by  the  practice  in  the  late. courts  which  always  permitted 
these  old  records  to  be  read  in  evidence  though  not  made  within  a  year 
from  the  date  of  the  deeds.  We  offer  this  deed  also  as  an  antient 
paper  whose  execution  would  be  presumed  after  such  a  lapse  of  time. 

The  Chief  Justice  said  he  had  made  the  objection  many  years  ago 
before  the  late  supreme  court  in  this  county  and  that  court  would  not 
permit  him  to  argue  it.  They  considered  it  then  to  be  well  settled. 
It  was  afterwards  decided  in  Kent  in  the  case  of  Stout  vs.  Pollen 
(or  Nickerson  vs.  Stout)  about  twenty  years  ago. 

Black,  Justice  said  he  had  often  heard  it  spoken  of  in  Newcastle 
county  but  had  not  knowoi  the  point  made.  The  bar  considered  the 
question  doubtful  on  the  act,  but  settled  by  the  practice  and  by  de- 
cisions which  were  understood  to  have  been  made  in  the  other  coun- 
ties. These  decisions  had  probably  induced  the  strong  exclusive  ex- 
pressions in  the  revised  act  to  which  it  has  been  found  necessarv  to 
add  so  many  supplements  extending  the  time.     Objection  overruled. 

By  agreement  the  further  examination  of  testimony  was  suspended 
on  the  following  arrangement.  In  the  case  of  Martin  s  Lessee  vs. 
Isaac  White,  verdict  to  be  rendered  for  deft.  In  the  case  of  Mar- 
tin s  Lessee  vs.  James  Roach,  verdict  to  be  rendered  for  the  plff. 
subject  to  the  opinion  of  the  court  on  the  devise  in  Mary  Fergus' 
will ;  and  subject  also  to  any  benefit  of  exception  to  the  opinion  of  the 
court  on  the  preceding  questions  of  evidence. 

Frame,  for  plff. —  The  question  arises  on  the  fourth  clause  of  the 
will  of  Mary  Fergus.  What  is  the  estate  which  Eliza  Fergus  took? 
We  say  that  it  is  an  estate  tail,  and  the  devise  over  is  a  vested  re- 
mainder in  fee  in  James  Martin.  On  the  part  of  the  deft,  it  will 
probably  be  contended  that  it  is  an  estate  in  fee  in  Eliza  Fergus  with 
an  executory  devise  over  to  James  Martin.  There  is  no  doubt  that 
the  first  clause  is  a  direct  devise  of  a  fee  to  Eliza  Fergus;  yet  it  is 
well  settled  that,  even  in  such  a  devise,  if  there  be  any  words  added 
which  qualify  the  word  ^Tieirs"  and  show  an  intention  of  limiting 
it  to  the  heirs  of  the  body  of  the  devisee,  it  will  only  create  an  estate 
tail. —  6  Cruise  202 ;  Devise  ch.  12  sec.  7.  The  question  then  is, 
what  superadded  words  will  have  this  effect  ?  and  we  lay  it  down  with 
confidence  that  the  expression  in  this  ^vill  "except  she  should  die 
without  an  heir  born  of  her  own  body"  is  of  all  others  the  most  apt 
for  this  purpose. 

The  whole  clause  is;  "Fourthly.  I  give  and  bequeath  unto  mv 
beloved  daughter  Eliza  Fergus  the  remainder  part  of  all  my  real  and 
personal  estate  to  her  and  her  heirs  forever,  except  she  should  die 
without  an  heir  born  of  her  own  body,  then  my  will  and  desire  is 
that  all  the  last  above  real  and  personal  estate  goes  to  James  Martin 
him  and  his  heirs  forever." 


Martin's  lessee  vs.  Roach.  489 

Tlie  wordri  "if  he  die  without  issue"  if  there  he  nothing  to  restrict 
them  to  issue  living  at  the  death  will  always  reduce  a  fee  sini])le  to 
an  estate  tail  (sec.  9):  yet  they  are  not  so  strong  as  this.  Heir  is  a 
more  technical  term  than  issue.  Suppose  it  were  "except  she  siiould 
<lie  witliout  issue  bom  of  her  own  body'"  could  there  be  a  doubt  that 
it  would  be  but  an  estate  tail?  yet  the  expression  here  is  even  stronger. 
If  this  is  to  be  construed  an  executory  devise  it  cannot  be  after  a 
general  failure  of  issue  or  heirs  of  the  body,  but  must  be  restricted  to 
heirs  of  the  body  of  Eliza  Fergus  living  at  the  time  of  her  death.  Is 
there  any  thing  in  this  will  so  to  restrict  it?  can  it  arise  from  the 
■use  of  the  word  'Tieir"  in  the  singular  number?  Not  so.  Here  was 
the  devisee  an  illegitimate  daughter  of  the  testatrix.  She  could  have 
no  collateral  heirs,  and  the  testatrix  saw  the  propriety  of  confining  it 
to  the  issue  of  the  body,  or  lineal  descendants.  It  cannot  be  confined 
to  the  immediate  issue  of  the  devisee's  body,  or  children;  because 
technically  speaking,  Eliza  Fergus  could  have  no  "heir"  during  her 
life,  as  nemo  est  hceres  viventis,  but  chiefly  because  it  would  violate 
the  principal  intent  of  the  testator  and  give  the  property  over  to 
.lames  Martin,  a  stranger,  to  the  exclusion  of  grand  children.  For  if 
Eliza  Fergus  had  had  issue  or  children  which  had  died  leaving  chil- 
dren these  could  not  take  on  the  death  of  their  grandmother  and  the 
whole  line  of  lineal  heirs  would  be  cut  off.  Nothing  shall  be  con- 
strued an  executory  devise  which  can  take  effect  as  a  remainder, 
and  a  vested  remainder  is  preferred  to  a  contingent.  6  Cruise  319. 
If  there  be  a  devise  of  both  real  and  personal  property  the  terms  may 
he  rendered  each  to  each.  The  same  words  may  give  a  fee  simple 
or  the  entire  property  in  the  personal  estate,  and  but  an  estate  tail  in 
the  realty.    1  P.  Wms.  667 ;  Fearne  476. 

Bayard.  The  intention  of  the  testatrix  in  this  case  cannot  be 
effectuated  without  giving  to  her  daughter  Eliza  Fergus  a  fee  simple, 
dependent,  not  on  her  dying  without  leaving  issue  at  the  time  of  her 
death,  but  on  the  contingency  of  her  having  had  no  heir,  or  child, 
born  of  her  own  body.  The  will  is  evidently  drawn  by  a  person 
unskilled  in  the  use  of  legal  terms — it  was  in  fact  drawn  by  James 
j^Iartin,  the  devisee  over — want  of  technical  knowledge  is  evident  on 
the  face  of  it.  Our  business  is  from  such  a  will ;  regarding  the  condi- 
tion of  the  testatrix  and  her  family;  and  her  main  purposes  as  a])- 
pearing  from  the  will  itself;  to  elicit  and  carry  out  her  designs;  with- 
out so  much  regarding  the  precise  legal  meaning  of  the  words  used. 
Plain  common  sense  would  interpret  this  will  thus: — "I  give  to  Eliza 
P"'ergus  my  daughter  and  to  her  heirs  forever  all  the  remainder  part 
of  my  property."  This  is  the  general  intent;  to  benefit  in  the  fullest 
extent  this  first  and  greatest  object  of  her  bounty,  her  child.  And 
thus  far  it  is  a  plain  fee;  but  there  is  a  limitation,  the  common 
sense  meaning  of  which  is  equally  plain ;  "  except  she  should  die  with- 
out having  had  an  heir  (i.  e.  a  child)  born  of  her  body"  in  that 
case,  and  in  that  case  only  shall  the  property  go  over  to  a  stranger. 
Tine  word  heir  may  be  construed  as  a  word  either  of  limitation  or  of 
purchase  to  meet  the  intent  of  the  testatrix.  2  Atkyns  582 ;  3  Chitty 
Dig.  1365.  I  agree  that  "  heir "  is  nomen  collectivum  and  is  the 
sam-?  a?  heirs,  but  the  use  of  it  here  shows  that  it  was  intended  to  mean 

62 


490  Martin's  lessee  vs.  Roach. 

the  f^nie  as  child;  and  that  it  is  to  be  taken  as  a  word  of  purchase. 
1  Crokc  Rep.  6G;  Archer's  case.  The  use  of  the  word  heir  in  the 
singular  is  ihe  reason  why  in  that  case  it  was  construed  a  word  of 
purchase,  and  not  because  there  is  a  limitation  over  to  the  heirs  of 
that  heir.  Fearne  102  (150.)  I  agree  that  technically  there  can- 
not be  an  heir  to  a  living  person  but  the  ordinary  acceptation  and 
use  of  the  word  is  the  same  with  child,  or  heir  apparent.  Croke 
Eliz.  453,  another  proof  of  Archer's  case  in  which  it  is  said  that  this 
is  the  vulgar  meaning  of  heir.  "Except  she  should  die  without  an 
heir  born  of  her  own  body; "  a  very  strong  expression;  the  word  own 
is  added  to  show  that  the  design  was  to  confine  it  to  her  immediate 
issue,  and  not  to  the  issue  of  such  issue.  What  common  person 
would  say  that  an  heir  born  of  her  otrn  body  could  mean  an  heir 
born  of  her  child's  body."  "  In  case  he  should  depart  this  life  and 
hear  no  issue"  construed  to  confine'it  to  issue  living  at  the  death  of 
ihe  devisee.  Roe  vs.  Jeffry,  7  T.  Rep.  585.  "  Except  she  should 
die  without  an  heir  born  of  her  oivn  body'is  much  stronger  to  show 
that  she  meant  to  confine  it  to  the  issue  or  children  born  of  the  body 
of  Eliza  Fergus—  to  a  failure  of  issue  at  her  death. 

When  words  applied  to  real  estate  would  give  an  estate  tail  they 
give  an  absolute  estate  in  personal  property,  1  Mad.  264 ;  ToUel^  vs. 
Chatham.  The  limitation  of  an  estate  tail  in  personal  property  is 
void.  3  Vezey  Jr.  99.  Chandler  vs.  Price.  Is  it  not  certain  that 
Mary  PV-rgus  meant  to  give  her  personal  estate  over  to  Martin  on  the 
same  event  that  she  gave  the  real  estate.  The  plff.'s  construction  un- 
doubtedly defeats  this  intention  as  to  the  personalty,  and  gives  to 
Eliza  Fergus  the  whole  of  it  without  the  possibility  of  its  going  over 
to  Martin.  On  our  construction  that  it  is  a  contingent  fee  dependent 
on  tho  birth  of  a  child,  all  the  devises  both  of  personal  and  real  may 
take  effect:  and  the  rules  of  construction  require  that  no  part  of  the 
instrument  shall  be  defeated  if  all  can  take  effect.  Forth  vs.  Chap- 
man, 1  P.  Wms.  663  is  not  law. 

Clayton.  "  Heirs  "  is  a  word  of  peculiar  meaning.  Heirs  of  the 
body  of  A.  are  his  issue  and  their  issue  forever.  Powell  on  devises 
361-2.  But  there  is  a  manifest  distinction  between  heirs  of  the  body 
of  A.  and  "  an  heir  born  of  her  own  body  "  the  former  is  an  estate 
tail  because  il  plainly  embraces  all  the  lineal  descendants  of  the  first 
taker;  the  latter  expression  shows  an  equally  plain  intention  to  con- 
fide it  to  the  immediate  descendants  or  children  of  the  first  taker. 
It  has  been  said  that  cases  on  a  will  are  of  very  little  importance  as 
precedents  unless  in  the  same  words,  for  they  depend  on  the  intent. 
No  case  has  been  found  in  which  such  an  expression  as  this  has  been 
construed  as  restricting  a  previous  plain  devise  in  fee  to  an  estate  tail, 
or  giving  to  the  heir  born  of  a  person's  own  body  the  extended  sig- 
nification of  issue  or  of  lineal  descendants  generally.  This  case  then 
is  not  to  be  governed  by  authority.  It  must  depend  on  the  meaning 
which  the  testatrix  herself  attached  to  the  words.  What  was  her 
meaning  and  intention?  Did  she  use  the  word  heir  in  its  le?al  signi- 
fication, extending  to  the  thousandth  generation,  or  did  she  mean 
such  an  heir  as  should  spring  immediately  from  her  daughter's  body; 
a  child  born,  in  the  strong  language  of  the  will,  of  her  oirn  bod  v. 
It  is  impossible  to  construe  this  into  an  indefinite  failure  of  issue 


Martin's  lessi:e  vs.  Hoacii.  491 

without  rejecting  the  word  "own"  which  is  too  important  as  mani- 
festing intent  to  be  rejected.  If  the  words  used  here  force  us  to 
the  conclusion  that  the  event  upon  which  Mrs.  Fergus  intended  this 
limitation  over  to  Martin  should  take  effect  must  happen  within  the 
compass  of  a  life  or  lives  in  being  and  twenty  one  years  after,  the 
limitation  over  is  an  executory  devise  and  the  devise  to  Eliza  Fergus 
is  a  contingent  fee.  And  the  event  necessarily  happened  within  that 
time.  Eliza  Fergus  was  in  being,  and  the  heir  to  be  born 
of  her  own  body  had  necessarily  to  be  born  during  her  life;  if 
it  was  not  so  born  the  limitation  over  would  take  effect;  and  on 
the  birth  of  such  an  heir  it  was  defeated,  and  the  contingent  fee  be- 
came absolute.  Cites  1  Chitty,  Dig.  345 ;  9  Vezey  197  ;  7  T.  Rep.  589  ; 
Roe  vs.  Jejfry,  Fearne  445;  431;  ("316^  Gore  vs.  Gore. 

Frame,  in  reply. —  The  counsel  on  the  other  side  have  taken  some- 
what different  views  of  this  will  but  they  both  seem  to  have  settled 
down  on  this,  that  the  expression  "heir  of  her  own  body"  means 
child  or  children  and  not  issue  generally.  The  great  question  is,  at 
what  time  and  upon  what  event  was  the  limitation  over  to  James  Mar- 
tin designed  to  take  effect.  Shall  it  take  effect  in  default  of  issue  living 
at  the  death  of  Eliza  Fergus  or  after  a  general  failure  of  issue.  The 
law  has  fixed  a  meaning  to  such  forms  of  expression  as  "dying  without 
issue ",  "  without  heir  of  the  body,"  "  heirs  of  the  body,"  &c.  &c. 
and  the  legal  import  of  all  such  expressions  is  a  general  or  indefinite 
failure  of  issue.  It  devolves  then  on  the  other  side,  if  this  is  to  be 
construed  an  executory  devise  which  it  cannot  be  after  a  general  fail- 
ure of  issue,  to  show  us  something  indicating  the  intention  of  the 
testatrix  to  have  these  terms  understood  differently  from  their  usual 
and  legal  meaning.  Doubtless  this  may  and  must  yield  to  clear  in- 
tention, but  such  intention  must  be  plain  and  not  doubtful.  How  do 
they  attempt  to  show  this  intention?  By  resorting  to  the  expression 
itself  and  rely  upon  words  which  have  a  legal  definite  meaning  to 
prove  a  different  meaning.  Much  stress  has  been  laid  on  the  word 
own.  It  is  no^  denied  that  "  dying  without  heirs  of  her  body  "  would 
make  an  estate  tail;  but  "dying  without  heirs  of  her  own  body"  is 
supposed  to  be  a  very  different  thing,  as  if  her  body  could  be  other 
ihan  her  own  body!!  And  Powell  was  cited  as  supporting  some 
such  distinction;  which  is  denied.  (Powell  on  Devises  361-2.  j  The 
words  first — next — eldest  child,  &c.  do  not  vary  the  construction,  be- 
cause they  express  no  more  than  heir;  neither  can  it  be  varied  by 
heir  horn  of  her  own  body  for  this  is  nothing  more  than  heir  l)orn 
of  her  body.  4  T.  Rep.  605;  8  Term  Rep.  211;  26  Johns.  Rep.  396: 
n.  a.  Chr.  Kent's  opinion. 

The  general  intention  of  the  testator  in  the  use  of  these  words  is 
in  accordance  with  the  legal  meaning  attached  to  them,  though  the 
vulgar  meaning  may  be  different;  for  when  a  man  leaves  his  property 
to  his  child  and  the  lawful  issue  of  that  child's  body,  his  intention  is 
that  not  only  children  shall  take  but  grandchildren,  and  the  whole 
line  of  lineal  descendants;  though  in  common  acceptation  "issue  of 
his  child's  body"  would  mean  only  children. 

To  what  result  will  Mr.  Clayton's  construction  lead?  If  "heir 
born  of  her  own  body"  means  a  child  or  children  living  at  the  death 
of  Eliza  Fergus,  then  in  case  she  had  had  a  child  and  that  child  had 


492  Martin's  lessee  vs.  Roach. 

died  in  the  life  time  of  her  mother  leaving  numerous  children,  the 
estate  would  go  over  to  James  Martin  to  the  exclusion  of  all  these 
grandchildren,  for  the  event  would  have  happened  of  Eliza  Fergus 
dying  "without  leaving  a  child  born  of  her  owa.  body."  Such  a 
construction  is  too  monstrous  to  be  entertained  for  a  moment  on  the 
ground  of  the  ititeniion  of  Mrs.  Fergus. 

Mr.  Bayard's  construction  is  still  less  plausible.  He  will  have  it 
that  the  event  upon  which  the  estate  was  to  go  over  to  Martin  was 
the  dying  of  Eliza  Fergus  without  "  having  had  a  child  bom  of  her 
own  body."  How  much  of  a  will  does  he  have  to  make  for  Mrs. 
Fergus  to  get  at  this ! !  But  establish  this  construction  and  it  makes 
it  a  contingent  and  conditional  fee,  and  Eliza  Fergus  having  once  had 
a  child,  the  estate  could  not  go  to  Martin  even  though  at  the  time  of 
her  death  there  was  an  entire  extinction  of  her  race.  Now  can  it  be 
doubted  that  the  testatrix  meant  James  Martin  should  have  the  prop- 
erty if  Eliza  Fergus  died  without  leaving  either  children,  grand- 
children or  any  issue  or  descendants?  One  other  thing  is  absolutely 
certain  from  the  will;  the  question  whether  Martin  should  in  fact 
ever  become  entitled  to  this  land  was  to  be  determined  at  the  period 
and  on  the  event  of  Eliza  Fergus's  death.  But  Mr.  Bayard's  con- 
struction makes  it  dependent  on  a  previous  event;  the  birth  of  a  child. 
It  cannot  therefore  be  correct. 

On  the  question  whether  the  bequest  of  the  personal  property  in 
the  same  words  affects  the  construction  as  to  the  reality.  I  care  not 
whether  the  same  words  have  the  same  meaning  when  apnlied  to 
different  kinds  of  property,  or  not.  Suppose  the  law  does  prevent  an 
entailment  of  the  personalty,  it  does  not  necessarily  prevent  an  entail- 
ment of  realty;  on  the  contrary  the  law  adjudges  such  an  estate  from 
the  very  words  which  fail  as  to  the  personal  propertv.  A  devise  of 
"all  my  property  both  real  and  personal  to  my  son  A"  gives  him  the 
absolute  estate  in  the  personalty,  and  only  a  life  estate  in  the  realty. 
And  see  Forth  vs.  Chapman,  1  P.  Wms.  663  Porter  vs.  Bradley,  et  ah 
3  Term  R.  143 ;  7  T.  Rep.  589 ;  Roe  vs.  Jeffry,  &c.  6  Term  Rep.  307 ; 
Daintry  vs.  Daintry,  17  Vesey  479;  16  Johns  413. 

The  court  directed  the  following  entry  of  judgment. 

And  now,  to  wit,  this  twentieth  day  of  April,  A.  D.  1835,  this 
cause  having  been  argued  by  counsel  on  both  Sides,  learned  in  the 
law,  upon  the  case  stated  and  agreed  upon  on  both  sides  and  filed  in 
the  cause,  and  the  court  having  heard  the  same  upon  the  said  case 
stated,  it  is  therefore  considered  and  adjudged  by  the  court,  and  the 
court  are  of  the  opinion,  that  the  said  Eliza  Fergus  took  an  estate  in 
tail  in  the  said  lands  and  premises  in  the  said  case  stated  mentioned, 
by  and  under  the  said  devise  contained  in  the  said  last  will  and 
testament  of  the  said  Mary  Fergus  in  the  said  case  stated  also  men- 
tioned ;  and  that  the  limitation  or  devise  of  the  said  lands  and  prem- 
ises made  in  and  by  said  will  to  the  said  James  Martin  was  a  vested 
remainder  in  fee  simple;  (a)  and  it  is  further  considered  and  ad- 

(a)  Where  there  is  a  devise  to  one  and  his  heirs  forever  if  there  be  a 
limitation  over  and  any  expression.  froHi  which  it  oair  be  colfected  that 
the  testator  intended  to  restrain  the  first  devise  to  any  particular  class  of 
heirs  it  will  be  so  restricted.  As  where  the  limitation  over  is  on  a  failure 
of  issue;  dyinor  without  issue  of  the  body,  or  heirs  of  the  body,  &c.  the 


Martin's  lessee  vs.  Koach.  493 

judged  by  the  court  that  the  plff.  do  recover  against  the  deft,  seven 
equal  undivided  eighth  parts  of  the  said  lands  and  premises  in  the 
said  case  stated  mentioned;  and  that  judgment  be  rendered,  and  the 

previous  general  devise  is  restrained  to  this  description  of  heirs  and  re- 
duced to  an  estate  tail  with  a  remainder  over. 

The  terms  "  failing  issue  " — "  dying  without  issue  "  and  other  expres- 
sions of  similar  import  have  a  fixed  legal  signification,  and  mean  a  gen- 
eral or  indefinite  failure  of  issue,  unless  there  be  something  to  show  that 
the  testator  meant  to  restrict  it  to  a  failure  of  issue  at  the  time  of  the 
death  of  the  first  taker.  For  it  is  reasonably  supposed,  when  nothing  ap- 
Iiears  to  the  contrary,  that  the  whole  line  of  lineal  descendants  of  the  first 
taker  are  the  objects  of  the  testators'  bounty  as  much  as  the  children  or 
immediate  issue;  and  that  a  construction  which  would  cut  off  grand- 
children and  give  the  estate  to  the  devisee  over  on  the  death  of  the  first 
taker  without  children  cannot  in  the  general  be  in  accordance  with  a  tes- 
tators intention.  And;  though  there  has  been  a  constant  struggle  in  the 
eases  to  apply  the  first  devise  to  children,  and  limit  the  event  on  which 
the  devise  over  shall  take  effect  to  a  dying  without  issue  living  at  the 
time,  the  whole  current  of  authorities  has  established,  that  whether  the 
form  of  expression  be  "  dying  without  issue  " — "  without  issue  of  his 
body  " — "  lawfully  begotten  of  his  body  " — "  leaving  no  issue  of  their  re- 
spective bodies  " — "  dying  without  an  heir  of  his  body  " — &c.  &c.  the 
meaning  is  still  the  same,  an  indefinite  failure  of  issue. 

The  first  case  in  which  this  form  of  expression  was  construed  to  mean 
a  definite  and  not  a  general  failure  of  issue  was  the  case  of  Pells  vs. 
Broivn,  Cro.  Jac.  590.  But  that  case  was  decided  on  the  particular  form 
of  the  devise  and  was  not  designed  to  controvert  the  general  rule.  It  has 
moreover  been  much  questioned.  See  Anderson  vs.  Jackson,  16  Johns. 
Hep.  407.  Yet  it  was  followed  in  Porter  vs.  Bradley,  3  Term.  Rep.  143, 
and  Roe  vs.  Jeffery  both  of  which  cases  chancellor  Kent  designates  as 
"  blind  guides."  In  the  first.  Lord  Kenyon  thought  the  words  "  if  he 
should  die  leaving  no  issue  behind  him  "  sufficient  to  restrict  it  to  issue 
living  at  his  death;  and  though  he  placed  much  stress  on  the  words  "  be- 
hind him "  he  intimated  that  the  expression  leaving  no  issue  would  be 
sufficient.  Yet  in  Daintry  vs.  Daintry,  6  Term.  Rep.  307,  it  was  decided 
that  "if  he  should  happen  to  die  without  leaving  issue  of  his  body'* 
meant  a  general  failure  of  issue. 

It  is  observable  that  in  all  the  cases  giving  a  restricted  construction  to 
"  issue  "  they  profess  not  to  violate  the  general  rule,  but  to  establish  ex- 
ceptions on  the  particular  words  of  the  will ;  yet  most  of  them  have  been 
recrarded  as  infringing  on  the  established  construction,  and  have  always 
l>een  more  or  less  controverted.  In  the  principal  case  the  defendant's 
counsel  admitted  the  general  rule ;  they  agreed  that  if  the  expression  had 
been  "  except  she  should  die-  without  issue  born  of  her  body "  it  would 
hav  been  an  estate  tail ;  but  they  distinguished  between  "  heir  "  and  issue, 
and  laid  much  stress  on  the  word  "  own  "  as  indicating  an  intention  to 
restrict  the  meaning.  The  reason  which  induced  the  enlarged  meaning 
applied  in  legal  construction  to  the  word  issue,  equally  applies  to  this, 
form  of  expression,  namely,  that  the  testatrix  did  not  intend  the  estate  to 
go  over  while  there  were  lineal  descendants  of  her  daughter  to  take  it.  It 
applied  to  this  will  with  peculiar  force.  The  first  devise  was  to  the  testa- 
trix's only  child;  the  remainderman  was  a  stranger  in  blood.  Without 
strong  evidence  of  that  intention  it  would  not  be  supposed  that  she  in- 


494  Coulter  rs.' Layton. 

court  da  hereby  render  judgment  for  the  plff.  against  the  deft,  for 
the  said  seven  equal  undivided  eighth  parts  of  the  said  lands  and 
premises,  together  with  the  costs  of  suit. 


WILLIAM  V.  COULTER  vs.  JOSHUA  LAYTON. 

A  justice  of  the  peace  must  try  the  cause  on   the  allegation  and  proofs  of  the 

plff.  before  giving  judgment  by  default. 
The  summons  should  specify  the  place  of  meeting  with  certainty. 
"At  Alilton,  before  Peter  Hall,"  is  not  sufficiently  certain. 

Certiorari  to  Justice  Ponder. 

The  exceptions  were:  First,  That  no  regular  or  legal  warrant  was 
issued  in  the  cause.  Second.  That  no  place  of  return  is  mentioned 
in  said  warrant.  Third.  That  judgment  was  rendered  by  the  justice 
by  default  against  the  said  Joshua  Layton  without  first  having  heard 
the  allegations  and  proofs  of  the  plif .  the  said  William  V.  Coulter,  as 
by  the  act  of  assembly  he  ought  to  have  done.  Fourth.  For  that 
the  execution  was  not  lawful. 

The  summons  was  —  "  to  appear,  on  Saturday,  the  nineteenth  day 
of  this  instant,  at  Milton,  before  Peter  Hall,  one  of  our  justices," 

tended  he  should  take  to  the  exclusion  of  the  grandchildren  or  other  lin- 
eal descendants  of  her  daughter.  There  is  nothing  in  the  word  "  heir  " 
either  in  the  singular,  or  "heirs"  in  the  plural,  that  should  give  it  a 
more  restricted  signification  than  issue.  Heirs  is  a  technical  word  of 
greater  latitude  than  issue,  comprehending  all  the  blood  relatives  either 
lineal  or  collateral.  Heirs  of  the  body  or  "heirs  bom  of  the  body"  is 
precisely  the  same  as  issue,  being  restricted  to  lineal  heirs  and  extending 
to  all  the  lineal  descendants.  And  "  heir  "  is  nomen  colleciivum,  and  the 
same  with  "heirs."  3  Bin.  Rep.  374.  In  one  of  the  earliest  cases  on  the 
stat.  de  donis  a  grant  to  B.  and  his  heirs  forever,  provided  B.  had  issue  of 
his  body  begotten;  and  if  he  died  without  heir  of  his  body  the  land  was  to 
revert,  was  construed  an  estate  tail.  In  Benn  vs.  Slater,  5  Term.  Rep. 
335,  on  a  devise  to  B.  and  if  he  died  without  male  heir  then  to  C.  and  his 
heirs;  Lord  Kenyon  said  it  was  clearly  an  estate  tail  in  B.  A  devise  to  a 
son,  and.  iji  case  he  died  without  heir  of  his  body  lawfully  begotten,  then 
over,  is  an  estate  tail.  Royal  vs.  Eppes,  2  Munfa.  479.  Has  the  word 
"  own  "  in  this  connection,  the  force  attributed  to  it  by  the  defendant's 
counsel  ?  It  is  difficult  to  distinguish  between  the  heirs  of  a  man's  body, 
and  the  heirs  of  his  own  body ;  and  such  a  distinction  would  seem  to  be 
too  refined  to  overturn  an  established  rule  of  construction.  It  has  been 
sought  to  apply  a  like  stress  on  the  words  "  first,"  "  next,"  *'  eldest  heir," 
&c.  but  they  have  been  held  not  to  vary  the  construction.  Powell  361. 
Lessee  of  James  vs.  Avis.  4  Term  Rep.  605 :  under  a  devise  "  to  A.  and  B. 
and  their  heirs  "  and  in  case  they  agree  to  sell  the  estate  that  they  should 
have  their  equal  share  of  the  money  arising  therefrom,  but  if  they  agreed 
to  keep  the  estate  whole  toarether  then  that  the  rents  should  be  equally 
paid  and  divided  between  them  and  the  several  and  respective  heirs  of 
them  on  their  bodies  lawfully  begotten."  A.  and  B.  took  only  estates  tail, 
lessee  of  Gregory  vs.  Whichelo,  8  Term  Rep.  211.  A  devise  to  "A  and 
B.  and  their  heirs  forever,  provided  that  if  both  have  issue,  then  both 
tbeir  dividends  to  so  to  tbe  issue  of  their  own  bodies  "  was  held  an  estate 
tail.  Here  tbe  word  own  actually  occurs,  and  is  applied  to  the  issue  gen- 
erally, the  nati  natorum,  et  qui  nascentur  ab  illis. 


Redden  vs.  Stewart  &  Townsend.  495 

&c.  And  the  docket  entry  of  judgment  was  as  follows :  "  Judgment 
entered  in  favor  of  plff.  the  26th  July,  1834,  for  the  above  debt  and 
cost,  by  default;  constable  sworn." 

The  judgment  was  reversed  on  the  second  and  third  exceptions. 
The  place  of  return  is  not  sufficiently  certain.  "  At  Milton,  before 
Peter  Hall,"  is  anywhere  in  the  town,  wherever  the  justice  may  be. 
The  summons  should  specify  the  place;  as,  for  instance,  "  before 
Peter  Hall,  esquire,  at  his  office,  in  Milton."  Such  was  the  uniform 
decision  of  the  late  supreme  court.  The  fifth  section  of  the  act  of 
assembly  requires  that  if  the  deft,  shall  fail  to  appear  "  the  justice 
may  adjourn  the  cause  to  a  further  day,  or  he  may  hear  the  allega- 
tions and  proofs  of  the  plff.  in  the  absence  of  the  deft,  and  give  judg- 
ment against  such  deft,  by  default,"  the  return  being  first  verified 
by  oath,"  &c.  From  this  it  appears  that  it  is  necessary  for  the  jus- 
tice to  try  the  cause,  to  examine  the  proofs  and  allegations  of  the  plff. 
to  be  satisfied  that  there  is  a  just  ground  for  his  judgment.  And  as 
it  is  his  duty  thus  to  try  the  cause,  his  record  should  show  tbat  he 
did  do  it,  either  by  stating  the  fact,  or  by  setting  forth  the  cause  of 
action  and  so  much  of  the  proof  as  will  show  that  the  cause  was  in- 
vestigated and  decided  on  sufficient  grounds,  (a)  Colesberry  vs. 
Stoops,  ante  448. 

Judgment  reversed. 


WILLIAM  0.  BEDDEN  vs.  STEWAET  &  TOWNSEND. 

The  justice's  record  ought  to  show  regular  adjournments  of  the  cause. 

Certiorari  to  Justice  Hall, 

Record.  "  Summons  issued  22d  March,  1834,  on  account,  de- 
manding $49  99,  returnable  29th  March,  1831.  Then  returned, 
executed  personallv.  Deft,  not  ap])earing,  judgment  bv  default, 
now,  to  wit,  this  12th  April,  1834.  Judgment  for  plff.  $49  99  and 
$1  84  costs. 

Exceptions.  First.  Because  judgment  was  rendered  by  the  jus- 
tice by  default  without  first  having  lieard  the  allegations  and  proofs 
of  the  plff.  and  without  trying  the  cause.  Second.  Because  tlie 
summons  was  returnable  on  the  29th  of  March,  and  judgment  was 
given  by  default  against  the  deft,  on  the  12th  of  April,  and  the  record 
does  not  show  any  adjournment  of  tlie  cause. 

Judgment  reversed. 

(a)-  The  following  form  of  enterins?  &  judsyment  by  default  would  meet 
the  requirements  of  the  act  of  assembly: 

"And  now,  to  wit,  this  day  of  ,  A.  D.  18 — ,  the  said  

,  the  defendant  having  failed  to  appear,  after  hearing  the  allega- 
tions and  proofs  of  the  said ,  the  plaintiff,  judgment  is  hereby 

given  against  the  said  defendant  by  default,  in  favor  of  the  said  plain- 
tiff, for  the  sum  of debt,  and  —  costs;  the  return  of  the  summons 

being  first  verified  ns  by  law  required. 

Judgment,  debt,  $ 

Costs, 


496  Jacobs  vs.  Walton. 


STANSBURY  JACOBS  vs.  WILLIAM  WALTON. 

In  a  bet  on  a  horse  race  neither  party  can  recover  the  wager  without  a  decision 

by  the  appointed  judges. 
Before  a  decision,  either  party  may  recover  back  his  stakes. 
A  special  demand  must  be  made  of  the  stakeholder  before  he  can  be  sued: 
But  where  after  he  was  notified  not  to  pay  the  money  over,  and  he  did  pay  it 

over  to  the  other  party  without  any  decision  by  the  judges,  it  was  held  that 

a  demand  was  unnecessary. 
Quere.     Can  a  bet  on  a  horse  race  in  another  state  be  recovered  here  ? 

Capias  case.    Narr.    Plea,  non  assumpsit.    Issue. 

The  plff.  declared  in  assumpsit  for  money  deposited  in  deft.'s 
hands  as  a  wager  on  a  horse  race.  The  first  count  set  out  a  bet  be- 
tween the  plff.  and  one  John  A.  Collins  on  the  event  of  a  race  to  be 
run  by  their  respective  horses  in  the  state  of  Maryland,  and  the  de- 
posit of  one  hundred  dollars  on  each  side  in  the  hands  of  deft,  as  a 
stakeholder.  That  plff.'s  horse  had  won  the  race,  but  deft,  refused  to 
pay  him  the  money,  &c.  The  second  and  third  counts  were  for 
money  lent,  and  money  had  and  received,  &c.  being  to  recover  back 
the  plff.'s  share  of  the  deposit. 

It  appeared  on  the  evidence  that  the  race  was  run  in  the  State  of 
Maryland,  and  that  each  party  claimed  to  have  won  it.  The  judges 
appointed  to  superintend  the  race  could  not  agree  as  to  the  result; 
and  had  never  made  any  decision.  The  plff.  demanded  the  money 
of  the  stakeholder,  and,  on  his  refusing  to  pay  it  to  him,  gave  him 
notice  not  to  pay  it  to  the  other  party.  He  nevertheless  did  pay  it 
over  to  Collins. 

Witnesses  were  called  to  testify  particularly  as  to  the  race  and  its 
result,  but  the  court  stopped  the  examination  on  that  subject. 

By  the  Court.  It  already  appears  that  these  stakes  were  deposited 
in  the  hands  of  deft,  to  be  paid  over  on  the  event  of  a  horse  race 
which  was  to  be  decided  by  judges  chosen  by  the  parties,  and  that 
such  a  decision  has  never  been  made.  It  is  unnecessary  therefore  to 
examine  testimony  as  to  which  party  won  the  race,  as  this  court  will 
not  decide  that  question,  nor  permit  either  party  to  recover  the 
stakes  without  a  decision  of  the  judges  agreed  upon  by  them  that 
such  party  was  the  winner..  Either  party  may,  however,  recover 
back  his  own  share  of  the  deposit. 

Bayard,  for  deft,  then  moved  a  nonsuit,  on  the  ground  that  no 
demand  had  been  made  before  action  brought.  He  assumed  that  this 
was  the  case  of  a  lawful  wager,  a  bet  on  a  horse  race  in  another  state. 
In  a  lawful  transaction  the  plff.  voluntarily  placed  his  money  in  the 
deft.'s  hands,  to  keep  until  a  certain  event  took  place,  and  he  cannot 
bring  suit  to  recover  it  back  until  after  a  demand.  It  may  be  other 
wise  in  the  case  of  an  illegal  wager;  for  the  money  may  be  recovered 
back  in  that  case  even  after  a  decision,  and  it  is  never  lawfully  in 
his  hands. 

Clayton.  It  is  not  important  whether  this  court  would  sustain  a 
bet  on  a  horse  race  as  a  legal  wager  or  not,  though  according  to  our 
act  of  assembly  I  have  considered  it  illegal;  but,  in  any  case,  if  a 
party,  before  a  decision  of  the  wager,  proceeds  in  disaffirmance  of 


SiRMAN  USE  OF  TUNNEL  VS.  BeRNARD's  ADM'RX.  497 

the  contract  he  is  entitled  to  recover  back  his  own  share  of  the- 
stakes.  Ear.  Dig.  126;  5  Term  R.  405;  4  Taunton,  474;  7  T. 
Rep.;  3  Stark,  on  Evidence,  1658;  Selwyn's  N.  P.  81.  The  plff. 
in  this  case  did  make  a  demand  of  the  money;  bnt  it  is  not  necessary 
to  prove  a  deinand,  as  the  deft,  on  his  own  responsibility  tindertook 
to  decide  the  bet,  and  did  pay  the  money  over  to  the  other  party. 

Bayard.  The  demand  was  of  all  the  money,  and  not  of  plff.'s 
share  of  the  deposit.  It  was  not  in  disaffirmance  of  the  bet,  but 
claiming  to  have  won  it. 

By  the  Court.  In  the  ordinary  case  of  a  deposit  in  the  hands  of  a 
stakeholder  it  would  be  unreasonable  that  he  should  be  sued  for  it 
and  put  to  the  expense  of  a  trial  without  having  an  opportunity  to 
pay  the  money  back  without  suit;  there  ought  therefore  to  be  a  de- 
mand. But  the  deft,  here  has  resisted  the  plff.'s  claim  upon  any 
part  of  the  deposit,  by  voluntarily  paying  all  the  stakes  over  to  the 
other  party,  after  notice,  and  against  the  orders  of  the  plff.  He  has 
put  it  out  of  his  power  to  respond  to  plff.'s  demand  by  payment. 
After  a  demand  by  plff.  of  the  whole  amount,  and  a  notice  not  to  pay 
it  over  to  the  other  party,  and  payment  in  disregard  of  this  notice, 
we  think  a  suit  will  lie  against  the  stakeholder  without  a  special  de- 
mand of  his  share  of  the  stakes. 

We  do  not  decide  the  question,  for  it  is  not  necessary  to  the  deci- 
sion of  this  case,  whether  a  bet  on  a  horse  race  in  another  state  can  be 
recovered  in  this  court  where  the  parties  go  out  of  this  state  merely 
for  the  purpose  of  legalizing  the  bet.  15  Com.  Law  R.  204;  Haste- 
low  vs.  Jackson,  21  ditto,  420,  Egerton  vs.  Furzman;  5  Term 
Rep.  405;  Cotton  vs.  Thurland,  4  Taunton,  474;.  Smith  vs.  Bick- 
more. 

The  plff.  had  a  verdict. 

Layton  and  Clayton,  for  plaintiff. 

J.  A.  Bayard,  for  defendant. 


JOSEPH  SIEMAN  for  the  use  of  GEOEGE  TUNNEL  vs.  ANN  C. 
BAENAED,  adm'x.  of  DEEICK  BEENAED. 

Notice  of  the  execution  of  a  rule  of  reference  must  be  given  to  the  opposite 
party  and  not  to  the  attorney. 

EuLE  to  show  cause  why  an  award  should  not  be  set  aside  on  the 
ground  that  no  notice  of  the  meeting  of  the  arbitrators  was  given  to 
the  defendant.  The  reference  specified  that  the  rule  might  be  exe- 
cuted exparte  on  ten  days  notice.  It  was  admitted  that  notice  had 
not  been  served  on  the  deft,  but  on  her  counsel.  Mrs.  Bernard  re- 
sides in  the  county. 

Eule  absolute,    (a) 

(a)  See  Cazier  vs.  Blackstock,  ante  362. 


498  Hearn  vs.  Hearn. 

ELI  ROBINSON  vs.  JOSIAH  COLLINS  and  ELIHU  HASTING. 

.  Semoe  of  a  summons  before  a  justice  of  the  peace  must  be  at  least  four  daje 
before  the  return,  exclusive  of  both  the  day  of  service  and  of  return. 

Certiorari  to  Justice  Griffith. 

Record.  Copy  of  cause  of  action.  "  November  4,  1830,  Balance 
due  to  Eli  Robinson  from  us  $29  46. 

(Signed)        JOSIAH   COLLINS. 
Witness,  ELIHU  HASTING." 

ELIHU  HASTING. 

Bohinson  vs.  Collins  and  Hasting.  Summons  August  30,  1833, 
on  a  note  of  settlement  dated  November  4,  1830,  whereon  $34  47 
is  demanded,  returnable  6th  September  next.  Returned  served  per- 
sonally on  both,  September  2,  1833.  Defts.  not  appearing,  judgment 
by  default  for  $34  47;  the  constable  having  duly  verified  the  ser- 
vice. 

Exceptions.  First.  That  the  cause  of  action  appears  to  have  been 
a  due  bill  showing  a  balance  due  the  said  Eli  Robinson  on  settle- 
ment of  $29  46,  and  judgment  is  rendered  by  default  for  $34  47.  " 
Second.  For  that  the  summons  was  not  served  on  the  exceptants  at 
least  four  days  before  the  day  designated  for  them  to  appear  before 
the  justice,  as  the  law  requires. 

Tlie  court  reversed  the  judgment  on  the  second  exception.  The 
law  requires  (Sec.  3)  that  service  of  the  summons  shall  be  made  at 
least  four  days  before  the  day  appointed  for  the  defts'.  appearance; 
which  must  be  exclusive  of  both  the  day  of  service  and  the  day  of 
return.  The  service  here  Avas  on  the  second  of  September,  and  the 
day  of  appearance  the  sixth.    It  was  therefore  not  in  time. 

Judgment  reversed. 


GEORGE  HEARN  vs.  EBENEZER  HEARN. 

In  debt  on  a  bond  payable  on  demand,  plfT.  need  not  prove  a  demand  before 

action  brought. 

Debt  on  bond  payable  on  demand. 

Cullen  gave  judgment  for  the  plff.  subject  to  the  opinion  of  the 
court  on  the  question  whether  the  action  could  be  sustained  without 
proof  of  a  special  demand  before  action  brought.  And  he  referred 
to  Mr.  Justice  Littledale's  opinion  in  Simpson  vs.  Routh,  9  Com. 
Law  Bep.  221;  (2  Barn,  and  Cressw.  682  ;j  whe5*e  he  says  that 
in  case  of  a  bond  with  a  penalty  to  pay  a  certain  sum  on  demand,  an 
express  demand  must  be  made  before  the  action  can  be  maintained. 

The  Court  said  the  judge  must  have  meant  a  bond  with  a  collat- 
eral condition.  His  reasoning  is  otherwise  against  his  own  opinion; 
and  that  opinion  clearly  wrong  if  applied  to  a  bond  for  the  payment 
of  money  on  demand.  The  distinction  is  between  a  collateral  con- 
tract for  a  thing  in  fieri,  and  a  precedent  debt  or  duty.     Wliere  a 


Graham  vs.  Wild.  499 

debt  or  duty  is  ascertained,  no  demand  is  necessary  other  than  the 
bringing  action  which  is  a  demand;  but  where  the  bond  or  contract 
is  for  a  collateral  thing  a  demand  must  be  proved.  Cro.  Eliz. 
548,  721;  1  Strange  Rep.  88;  2  Levinz  198;  Cro.  Jac.  242;  1  Saund. 
Hep.  32  n. 

Judgment  for  plaintiff. 

Lay  ton,  for  plff. 

E.  D.  Cullen,  for  deft. 


The  State,  for  the  use  of  BENJAMIN  GEAHAM  vs.  JAMES  P. 

WILD. 

If  the  land  of  an  intestate  be  sold  by  proceedings  under  the  intestate  law,  and 
tlius  converted  into  money,  a  tenant  by  the  curtesy,  or  in  dower,  of  a  de- 
ceased heir's  share  of  the  land  is  not  entitled  to  any  portion  of  the  money; 
but  the  same  belongs  to  the  representatives  of  such  deceased  heir. 

If  the  interest  of  tenant  by  the  curtesy  in  intestate  lands  be  sold  and  the  land 
be  afterwards,  by  proceedings  in  the  orphans'  court,  changed  into  money,  the 
assignee  of  the  tenant  by  the  curtesy  is  not  entitled  to  his  wife's  share  of 
the  money,  but  the  same  belongs  to  her  and  her  representatives. 

Note;  the  law  on  this  subject  has  been  changed  by  act  of  assembly  9  vol.  6. 

Scire  facias  on  a  recognizance  in  the  orphans'  court.  Demurrer 
to  scire  facias  and  joinder. 

The  scire  facias  set  forth  that  Eobert  Graham  died  intestate  in 
the  year  1813  seized  in  fee  simple  of  lands  in  Kent  county,  and  leav- 
ing to  survive  him  six  children,  two  of  whom,  Celia  and  Jane,  were 
daughters.  Celia  married  Jackson  Lafferty  in  1816,  and  died  prior 
to  1820,  leaving  to  survive  her  her  said  husband  and  also  children 
who  are  now  living.  In  1820  or  1821  Jackson  Lafferty  married 
Jane,  the  other  daughter  of  Eobert  Graham,  both  of  whom  are  now 
alive  and  have  children  of  this  marriage.  In  1822  the  sheriff  of 
Kent  county  under  process  of  execution  against  Lafferty  sold  all  his 
right  in  the  lands  of  which  Eobert  Graham  had  died  seized,  and  of 
that  right  Benjamin  Graham  the  cestui  que  use  in  the  present  action 
became  the  purchaser. 

Proceedings  were  had  in  the  orphans'  court  of  Kent  county  to 
effect  a  division  amongst  the  heirs  of  the  real  estate  of  which  Eobert 
Graham  died  seized,  which,  in  consequence  of  the  refusal  of  the 
heirs  to  accept  the  lands  at  the  valuation,  resulted  in  a  sale  being 
made  of  those  lands  under  an  order  of  court  in  1834  at  which  James 
P.  Wild  the  present  deft,  became  the  purchaser,  and  on  the  19th  of 
October  1834  they  were  assigned  to  him,  and  he  on  the  same  day 
entered  into  a  recognizance  in  the  orphans'  court  conditioned  "  to  pay 
to  the  parties  entitled  severally  their  respective  executors,  adminis- 
trators or  assigns,  their  just  and  proportionable  shares  of  the  purchase 
money  of  the  said  lands."  On  this  recognizance  the  present  suit 
was  instituted  by  Benjamin  Graham  to  recover  from  Wild  the  one 
third  of  the  purchase  money  secured  by  the  said  recognizance;  that 
is,  the  share  of  Celia,  being  one  sixth  part ;  and  also  the  share  of  Jane, 
being  one  other  sixth  part ;  and  he  rested  his  claim  on  the  ground  of 
his  being  the  purchaser  of  Jackson  Lafferty's  rights  in  those  lands 
under  the  sale  made  by  the  Sheriff,  Lafferty's  being  at  the  time  of 


500  FiDDEMAN  USE  OF  DaVIS  VS.  BiDDLE. 

sale,  and  now,  tenant  by  the  curtesy  of  the  share  of  Celia  in  those- 
lands  and  also  tenant  by  the  curtesy  initiate  of  Jane's  share  therein. 

The  question  raised  by  the  demurrer  was,  whether  the  assignee  of 
a  tenant  by  the  Curtesy  (either  consummate  or  initiate)  acquires  by 
his  piirchase  of  the  husband's  life  estate  or  interest  in  the  lands  of  the 
Avife  of  which  he  is  thus  tenant,  a  right  to  sue  for  and  recover  from 
the  recognizor  the  share  of  money  due  to  the  wife  or  in  right  of  the 
wife,  and  which  has  been  secured  by  recognizance  in  the  orphans' 
court  to  be  paid  to  the  parties  entitled,  under  a  sale  made  by  order 
of  that  court,  and  by  which  sale  money  has  become  substituted  for 
the  land  of  the  intestate. 

It  was  argued  by  Hu/fington  for  the  plfp.  and  Frame  for  deft.; 
and  the  court,  after  consideration  and  a  curia  advisare,  decided  in 
the  negative. 

Mr.  Justice  Black,  delivered  the  opinion  of  the  court  at  great 
length,  going  into  a  particular  examination  of  the  intestate  law  with 
a  view  to  its  construction  on  this  point;  and  concluded  by  sustaining 
the  demurrer  and  giving  judgment  for  the  deft,     (a) 

Huffingto7i,  for  plff. 

Frame,  for  deft. 


PHILIP    D.    FIDDEMAN   use   of    ISAAC    DAVIS    vs.    JACOB 

BIDDLE. 

After  a  levy  to  the  amount,  though  returned  subject,  &c.,  no  fi.  fa.  for  residue 

can  issue  until  the  old  levy  be  disposed  of. 
Nor  can  a  fi.  fa.  for  residue  accompany  the  venditioni  for  that  purpose. 
A  levy  to  the  amount  is  prima  facie  a  satisfaction. 
Quere,  is  a  levy  on  land  a  satisfaction  prima  facie? 
Prior  liens  should  be  specified  in  the  SheriflF's  return. 
Quere,  after  what  lapse  of  time  can  execution  begun  be  continued  without 

8ci.  fa. 

Pluries  venditoni  Exponas,  alias  fi.  fa.  for  residue  and  attach- 
ment. 

Rule  to  show  cause  why  this  writ  should  not  be  set  aside,  for  ir- 
regularity. 

The  writ  recited  a  judgment  at  the  suit  of  the  Commercial  Bank 
against  Biddle,  for  the  real  debt  of  $670  and  interest:  the  payment 
of  the  debt  to  the  bank  by  Fiddeman  as  the  surety  of  Biddle  and  an 
assignment  of  the  judgment  to  Fiddeman  under  the  act  of  assembly; 
the  issuing  (after  the  assignment  afsd.)  of  a  writ  of  pluries  pluries  fi. 

(a)  This  decision  important  as  it  was  at  the  time,  as  giving  for  the 
first  time  a  construction  of  the  intestate  law  on  this  question,  has  been 
since  rendered  unimportant  in  its  general  application  by  a  supplement  to 
that  law,  passed  on  the  recommendation  of  the  judges  at  the  special  ses- 
sion in  1835.  By  that  supplement  (9  Del.  Laws  6)  tenants  by  the  curtesy 
or  in  dnwer  are  entitled  to  such  share  of  the  appraised  value,  or  proceeds 
of  sales,  of  land  appraised  or  sold  by  order  of  the  orphans'  court,  as  such 
tenant  or  dowress  were  entitled  to  in  the  land ;  and  to  receive  the  interest 
on  such  share  during  their  lives ;  or  to  receive  the  principal,  on  entering 
into  recognizance  that  the  same  shall  be  paid  over,  after  their  death,  to 
the  parties  entitled  according  to  the  act  to  which'  this  is  a  supplement. 


FiDDEMAN   USE  OF   DaVIS   VS.  BiDDLE,  501 

fa.  to  May  term  1824,  bearing  teste  the  22d  December,  1823,  to  which 
the  sheriff  returned  nulla  bona,  levied  on  lands  per  inquisition 
to  ivit:  Nos.  1,  2  and  3,  inquiry  held  and  not  sufficient;"  a  writ  of 
venditioni  exponas  to  December  term,  1824,  for  the  sale  of  the  said 
lands,  which  was  returned  "sale  made  of  No.  2  for  thirty  dollars, 
and  Nos.  1  and  3  remain  unsold  for  want  of  buyers:"  a  writ  of 
alias  venditioni  exponas  to  May  term,  1825,  for  the  sale  of  the  said 
remaining  tracts.  Nos.  1  and  3,  which  was  returned  "sale  made  of 
No.  1  for  $14  25  and  not  sufficient  and  No.  3  remains  unsold  for 
want  of  buyers:"  a  writ  of  fieri  facias  for  residue  to  December 
term,  1825,  (tested  1  June,  1825)  commanding  the  sheriff  to  levy 
and  make  of  the  goods,  &c.  lands,  &c.  of  the  said  Jacob  Biddle  the 
residue  of  the  said  debt  and  damages,  to  which  the  sheriff  returned 
(at  the  said  December  term,  1825)  "levied  on  goods  as  per  inven- 
tory and  appraisement  amounting  to  $1114  00,  subject  to  prior 
claims,  prior  executions  and  landlord's  rent  of  $375/'  Then 
came  the  present  writ  of  pluries  venditioni  exponas,  alias  fieri 
facias  for  residue,  and  dttachment  which  was  tested  on  the  3d  No- 
vember, 1834,  and  returnable  to  April  term,  1835.  It  commanded 
the  sheriff  to  sell  the  goods,  &c.  levied  on  by  virtue  of  the  afsd.  fi. 
fa,  for  residue;  to  levy  and  make  of  the  goods,  &c.  of  the  said  Jacob 
Biddle  any  residue  that  should  remain  after  such  sale;  and  to  sum- 
mon the  garnishees  of  the  said  Jacob  to  answer,  &c. 

Frame,  in  support  of  the  rule.  The  writ  is  irregular  and  this 
motion  to  set  it  aside  proper.  Tidd.  934.  As  far  back  as  1825,  the 
plff.  took  in  execution  goods  to  nearly  double  the  amount  of  his  debt, 
as  appears  by  the  inventory  and  appraisement.  This  is  a  legal  satis- 
faction of  the  debt  until  more  appears.  2  Tidd.  937,  912,  934.  It 
may  be  said  that  the  return  shows  that  these  goods  were  subject  to 
other  demands.  In  the  first  place  such  a  return  without  any  specifi- 
cation of  sums  or  persons  is  a  mere  nullity.  The  act  of  assembly 
provides  for  this,  and  if  the  sheriff  follows  its  directions  and  specifies 
prior  executions  and  their  amounts,  they  may  be  deducted;  but  not 
where  he  specifies  neither  the  number,  amounts  nor  parties  in  the 
executions  much  less  can  prior  claims  be  allowed,  which  means  any 
thing  or  nothing.  The  court  therefore  cannot  regard  this  qualifica- 
tion of  the  return,  but  will  take  it  according  to  the  appraisement  that 
a  sufficient  amount  of  goods  were  levied  to  satisfy  the  debt,  until  the 
contrary  be  shown.  For  all  that  appears  by  the  record  the  debt  is 
legally  satisfied  by  the  levy.  On  this  ground  the  alias  fi.  fa.  must  be 
set  aside.  Second.  But  supposing  it  should  turn  out  that  the  levy 
after  a  sale  and  deducting  prior  liens  was  not  sufficient  to  satisfy  the 
debt,  iintil  this  appears  no  fi.  fa.  for  residue  can  issue,  for  until  the 
sale  non  constat  that  there  is  a  residue.  A  writ  for  a  residue  must 
&how  that  there  is  a  residue  and  the  amount  thereof:  that  is,  it  must 
show  absolutely  what  has  been  made  on  the  first  levy.  So  are  all  the 
forms.  (Tidd.  Appx.  273 ;  Ch.  41,  sec.  65  explains  the  text  of  2 
Tidd.)  I  take  the  ground  then  that  after  a  levy  of  goods  to  the 
amount  of  the  debt  according  to  the  inquisition  and  appraisement,  no 
fi.  fa.  for  residue  can  be  issued  until  a  return  of  the  sale  of  the  goods 
and  of  the  application  of  the  proceeds  shows  that  there  is  a  residue. 
It  is  true  that  in  England  a  fi.  fa.  for  residue  may  accompany  the 


602  FiDDEMAN  USE  OP  DaVIS  VS.  BiDDLE. 

venditioni  exponas  for  the  sale  of  the  first  levy;  but  this  is  because 
the  sheriflE  is  there  always  accountable  to  the  amount  and  the  residue- 
is  ascertained  and  known  from  the  date  of  the  levy.  (2  Tidd.  935.) 
It  is  not  so  here  and  I  am  by  no  means  satisfied  that  in  any  case  a 
fi.  fa.  can  accompany  the  venditioni.  It  is  impossible  to  say,  with 
certainty,  that  the  first  goods  will  not  sell  for  enough.  Third.  There 
is  another  legal  satisfaction  of  this  debt  appearing  on  the  record,  and 
that  is  a  portion  of  the  levy  on  land,  the  tract  No.  3,  which  has 
never  yet  has  been  sold  as  appears  by  the  record.  Fourth.  Tidd.  p. 
931,  says  a  subsequent  writ  of  execution  must  be  tested  on  the  re- 
turn day  of  the  former.  There  is  here  a  lapse  of  several  years  be- 
tween the  fi.  fa.  and  venditioni  exponas  and  alias  fi.  fa.  I  contend 
therefore  that  this  is  irregular  as  a  continuing  execution;  and  fur- 
ther, fifth;  that  no  new  execution  original  in  its  character,  as  this 
alias  fi.  fa.  for  residue  is,  could  be  legally  issued  after  the  year  and 
day  without  a  previous  scire  facias.  I  am  not  positive  that  a  ven- 
ditioni exponas  could  issue  for  the  sale  of  an  old  levy,  and  as  a  con- 
tinuation of  that  execution  process,  but  I  insist  that  proceedings  in 
the  nature  of  new  execution  process  cannot  be  originated  after  this 
lapse  of  time  without  a  scire  facias. 

Bates,  contra.  It  is  impossible  to  specify  the  amount  of  residue 
in  a  fi.  fa.  for  residue  under  our  practice.  The  English  forms  must 
therefore  necessarily  be  varied  from  to  suit  the  different  construction 
we  make  to  the  sheriff's  liability.  In  England  the  sheriff  is  liable 
at  once  to  the  amount  of  the  levy;  the  goods  are  his  goods,  he  seizes 
and  takes  them  away.  It  is  not  so  here;  and  our  invariable  practice 
has  been  to  issue  for  residue  without  showing  what  has  been  before 
made,  or  the  exact  amount,  or  any  amount  of  residue ;  the  plaintiff,  of 
course,  always  levying  further  at  his  peril.  Is  this  practice  of  twenty 
years  standing  now  to  be  changed  by  reference  to  the  English  forms 
when  so  substantial  a  reason  exists  for  the  difference?  Second.  The 
sheriff's  return  here  does  show  the  amount  of  rent  to  which  the  first 
levy  was  subject,  ($375)  and  taking  this  from  the  amount  of  the 
appraisement  it  ascertains  a  residue  without  regarding  the  prior 
liens  mentioned  in  his  return,  and  of  which  the  prior  executions 
must  undoubtedly  be  noticed.  This  entitled  us  to  a  fi.  fa.  for  resi- 
due, and  according  to  the  practice  and  the  law,  we  had  the  right  to 
connect  with  it  a  venditioni  exponas  for  the  sale  of  the  old  levy. 
Third.  Is  the  undisposed  levy  on  land  No.  3,  an  objection  to  the  is- 
suing of  this  writ?  Although  lands  are  made  liable  to  be  sold  in  pay- 
ment of  debts  it  has  never  been  decided  that  a  levy  on  land  is  a  satis- 
faction. If  it  were  so  it  would  compel  every  creditor  to  go  on  and 
sell  or  extend  the  land  after  having  once  made  a  levy  without  resort 
to  subsequently  acquired  personal  property.  The  practice  is  alto- 
gether different,  and  so  is  the  policy  of  the  law?  After  inquisition 
the  creditor  may  elect  to  take  the  land  or  wait  for  satisfaction  out  of 
the  defendant's  goods.  The  law  only  makes  the  land  liable  to  be  sold 
in  the  last  resort;  not  when  any  money  can  be  made  from  the  per- 
sonalty. Fourth.  Should  a  sci.  fa.  have  been  issued  before  the  alias 
fi.  fa.  for  residue?  The  practice  has  obtained  in  Sussex,  and  it  has 
been  understood  to  be  under  the  sanction  of  the  court,  to  issue  a  vice 
comes  within  the  year  and  day,  and  at  any  time  after  to  enter  con- 
tinuances, and  issue  further  execution  process. 


Waggstaff  vs.  Ashtox.  503 

(The  Chief  Justice  referred  to  a  decision  heretofore  made  in  the 
case  of  Cooper  and  wife  vs.  May,  ante  18,  in  which  this  point  was 
considered.) 

Frame,  in  reply.  I  deny  any  practice  in  this  state  connecting 
a  fi.  fa.  for  residue  with  a  venditioni  for  the  sale  of  the  old  levy  un- 
less it  be  the  practice  of  the  gentleman  opposed  to  me;  and  that 
practice  is  not  of  an  earlier  date  than  1825,  and  has  been  resorted  to 
in  but  few  instances.  If  it  has  not  been  arrested  it  may  be  because 
it  has  not  heretofore  been  questioned.  It  at  least  has  never  been 
ratified  by  any  decision  of  the  courts,  and  has  not  been  followed  by 
others.  The  rent  specified  in  the  sheriff's  return  was  for  the  year 
1825,  and  as  the  goods  have  not  been  sold  it  must  long  since  have 
been  paid  without  resort  to  them.  The  claim  itself  is  now  barred 
by  limitation.  It  is  therefore  not  noiu  to  be  deducted  from  the  levy 
in  any  inquiry  as  to  how  much  of  that  levy  is  applicable  to  this 
debt. 

By  the  Court.    Clayton  Chief  Justice: 

The  motion  to  set  aside  this  writ  of  venditioni  exponas  which  has 
in  it  a  fi.  fa.  for  residue  must  prevail.  In  England  where  the  levy 
is  not  to  the  amount  of  the  debt  the  venditioni  exponas  may  include 
a  fi.  fa.  for  the  residue,  but  there  the  sheriff  is  answerable  for  the 
amount  of  the  goods  levied  on  at  the  value  as  returned  by  him.  Here 
he  is  answerable  for  the  goods,  but  not  for  the  value  at  which  they 
are  appraised,  and  the  amount  for  which  the  fi.  fa.  should  go  is  not 
ascertained,  nor  can  it  be  ascertained  except  by  an  actual  sale.  The 
English  practice  ought  not  therefore  to  be  introduced  here;  nor 
should  a  fi.  fa.  for  residue  issue  until  there  has  been  an  actual  sale 
of  the  goods.  The  practice  therefore  of  issuing  a  venditioni  exponas 
and  inserting  in  it  a  fi.  fa.  for  residue  cannot  be  sanctioned  by  this 
court.  Xo  fi.  fa.  for  residue  should  issue  until  it  is  ascertained  by  a 
sale  what  that  residue  is. 

Eule  made  absolute. 

Frame,  in  support  of  the  rule. 
Bates,  contra. 


JAMES  WAGGSTAFF  vs.  PHILIP  ASHTOX. 

In  slander  the  deft,  cannot  on  the  general  issue  give  in  evidence  facts  to  dis- 
prove malice,  or  mitigate  the  damages,  if  such  facts  tend  to  establish  the 
truth  of  the  charge;  though  he  expressly  admit  the  words  to  be  false. 

A  charge  of  perjury  is  actionable  without  a  colloquium  showing  that  it  was  in 
the  course  of  a  judicial  proceeding. 

Capias  case  for  slander.  Xarr;  Pleas  not  guilty  and  justification. 
The  plea  of  justification  withdrawn. 

The  slander  alledged  imputed  perjury  to  the  plaintiff.  It  was  laid 
several  ways  in  the  narr,  as  "  I  can  prove  you  a  perjured  man; "  "  I 
do;  you  are  perjured,  and  I  can  prove  it,"  &c. 

The  defendant  on  withdrawing  his  plea  of  justification  filed  the 
following  paper:  "And  now  to  Avit,  <Src.  Philip  Ashton  the  deft, 
in  the  above  cause  comes  into  court  and  withdraws  the  plea  of  justifi- 


504  Waogstaff  vs.  Ashton. 

cation  by  him  heretofore  pleaded  in  the  above  cause,  and  admits  that 
the  words  alledged  in  the  declaration  to  have  been  spoken  by  him, 
and  which  were  spoken  in  relation  to  an  oath  made  by  the  said  James 
Waggstaff  as  garnishee  on  the  eighteenth  day  of  November  one  thou- 
sand eight  hundred  and  thirty-three,  in  a  certain  cause  then  depend- 
ing before  this  court  in  which  the  said  Philip  Ashton  was  plaintiff 
and  a  certain  Joseph  Clegg  defendant,  were  false;  and  that  the  said 
James  Waggstaff  was  not  perjured  in  making  the  said  oath;  but  the 
said  Philip  Ashton  gives  notice  that  he  will  prove,  under  the  gen- 
eral issue,  at  the  trial  of  the  cause,  that  he  had  probable  cause  to  be- 
lieve and  did  believe  at  the  time  of  speaking  the  said  words  that  the 
said  James  Waggstaff  was  perjured,  from  the  fact  that  the  said  James 
Waggstaff,  after  the  attachment  was  laid  in  his  hands,  and  before  the 
oath  so  made  by  him,  acknowledged  that  he  was  indebted  to  the  said 
Joseph  Clegg,  as  also  from  the  statement  which  he  made  of  the  man- 
ner in  which  his  promissory  note  to  the  said  Joseph  Clegg  had  been 
paid." 

The  plaintiff  having  made  out  his  case,  the  defendant  called  a 
witness  to  prove,  under  this  disclaimer  and  notice,  that  plff,  had  ad- 
mitted his  indebtedness  to  Clegg  after  the  attachment  was  laid  in 
his  hands  and  before  his  said  oath.  The  introduction  of  this  kind  of 
evidence  was  objected  to. 

J.  A.  Bayard.  The  defendant  under  the  general  issue  is  not  al- 
lowed to  prove  either  the  truth  of  the  words  spoken,  or  facts  tending 
to  establish  their  truth.  General  reports  may  be  given  in  evidence 
in  mitigation  of  damages ;  but  not  particular  facts  tending  to  establish 
the  charge.  The  plff.  cannot  be  supposed  to  come  prepared  to  meet 
these  facts;  and,  if  admitted,  the  result  might  be  that  in  a  case 
where  the  deft,  does  not  dare  to  put  in  issue  and  try  the  truth  of  the 
charge  by  a  plea  of  justification,  he  might  nevertheless  in  this  side  way 
establish  its  truth  and  prove  the  guilt  of  the  plff.  without  giving  him 
any  notice  to  prepare  his  defence.  2  Stark.  Ev.  470,  (878;)  3  Eng. 
Com.  Law  Rep.  177;  Mills  vs.  Spenser,  2  Saund.  Ev.;  10  Com.  Law 
Rep.  29 ;  May  et  dl.  vs.  Brown. 

R.  H.  Bayard.  This  is  a  question  of  great  importance  and  not  to 
be  disposed  of  by  a  mere  reference  to  elementary  treatises,  or  nisi 
prius  decisions.  We  propose  to  introduce  this  evidence  on  the 
ground  of  a  paper  filed  in  the  cause  which,  after  admitting  the  speak- 
ing of  the  words,  and  that  they  were  false,  gives  notice  of  this  de- 
fence. The  point  is  whether  in  the  case  of  a  formal  disclaimer  by 
the  deft,  of  any  attempt  to  prove  the  truth  of  the  words  he  may  not 
prove  that  he  was  induced  by  the  acts  and  the  declarations  of  the  plff. 
to  believe  that  they  were  true.  Prior  to  the  case  of  Underwood  vs. 
Sparks,  2  Strange  1200,  the  deft,  could,  under  the  general  issue, 
prove  any  thing  material  to  his  defence.  In  that  case  it  was  decided 
that  he  should  not  be  permitted  to  prove  the  truth  of  the  charge  un- 
der the  general  issue;  because  you  would  thus  take  the  plff.  by  sur- 
prise and  put  him  on  trial  for  his  whole  life.  Nor  will  he  be  per- 
mitted to  give  in  evidence  facts  tending  to  prove  the  truth  of  the 
words  spoken  without  an  admission  that  they  are  untrue,  8  "Wen- 
dall's  Rep.  579.     By  declining  to  justify  he  admits  that  the  words 


Waggstaff  vs.  Ashton.  505 

are  untrue  and  he  can't  be  permitted  to  do  indirectly  what  he  could 
not  do  directly.  The  implied  admission  growing  out  of  the  plead- 
ings might  be  contradicted  and  overthrown  by  the  proof.  But  where 
the  deft,  distinctly  admits  that  the  words  spoken  are  untrue  and  dis- 
claims any  intention  of  attempting  to  establish  the  charge  he  may 
prove  facts  which  show  that  he  had  probable  ground  to  believe  it 
true  and  was  not  actuated  by  malice  in  asserting  it ;  facts,  which  with- 
out his  admission,  might  tend  to  prove  the  truth  of  the  charge.  The 
books  will  be  found  to  establish  this  classification  of  the  cases.  8 
WendalVs  Rep.  573;  Oilman  vs.  Lowell.  Where  a  party  charged 
another  against  Avhom  a  Justices'  judgment  had  been  obtained  with 
falsely  swearing  in  making  oath  that  he  was  a  freeholder  he  was  al- 
lowed to  show  that  on  search  for  the  deed  in  the  clerk's  office,  where 
by  law  it  was  required  to  be  recorded,  it  was  not  found,  owing  to 
a  mistake  of  the  clerk  in  indexing  the  records.  To  the  plea  of  the 
general  issue  the  deft,  subjoined  a  notice  that  on  the  trial  he  would 
prove  that  although  Oilman's  statements  in  respect  to  the  deed  were 
true,  that  he  held  such  "deed  and  that  it  was  in  fact  recorded,  yet  that 
after  his  oath  and  before  the  speaking  the  words,  he,  Lowell,  caused 
diligent  search  to  be  made  in  the  recorder's  office  and  that  owing  to 
a  mistake  in  indexing  the  records  it  coiild  not  be  found;  and  that  he 
had  therefore  reason  to  believe  that  no  such  deed  was  recorded,  and 
that  plff.  had  sworn  falsely. 

So  here  the  deft,  distinctly  admitting  that  the  charge  against 
"Waggstaff  that  he  swore  falsely  in  declaring  that  he  was  not  in- 
debted to  Clegg  is  untrue,  proposes  to  prove  that  he  had  reasonable 
ground  to  believe  it  to  be  true  because  the  plff.  admitted  his  indebted- 
ness to  Clegg  after  attachment.  The  objects  of  an  action  of  slander 
are  not  to  avenge  the  insult  nor  to  make  money  for  the  plff.,  but  to 
try  the  truth  of  the  charges  against  him,  to  restore  his  character  and 
to  punish  the  deft,  for  the  malicious  defamation.  The  points  are  the 
speaking  the  words,  their  falsity,  and  the  malice.  The  damages  de- 
pend on  the  malice  and  this  can  be  known  only  from  all  the  circum- 
stances attending  the  charge.  The  plff.'s  character  is  restored  by  a 
distinct  admission  that  the  words  spoken  are  false;  the  malice  is  dis- 
proved by  showing  that  the  deft,  believed,  though  erroneously,  that 
they  were  true.  And  the  deft,  may  give  in  evidence  mitigating  cir- 
cumstances, or  facts  tending  to  establish  a  ground  of  suspicion,  but 
not  amounting  to  proof  of  the  charge.  1  T.  Rep.  110;  Peake's  Ev. 
Nohle  vs.  Fuller;  2  Camp.  250;  3  Camp.;  3  Serg.  &  Lowher;  Com. 
Law  Rep.  112,  115,  n.;  12  ditto  269;  1  Binn.  Rep.  91. 

J.  A.  Bayard.  Has  the  deft,  a  right  to  introduce  this  evidence 
by  reason  of  his  disclaimer  on  the  record?  By  what  authority  is  it 
placed  there?  Is  it,  or  not,  a  part  of  the  pleadings?  It  is  a  proceed- 
ing unknown  to  our  practice,  and  amounts  to  nothing  more  than  an 
admission  by  tlie  counsel  at  the  bar  that  the  charge  made  by  his 
client  is  false,  and  that  he  has  slandered  the  deft.  And  on  the 
strength  of  this  admission  he  claims  to  be  permitted  to  turn  round 
and  prove  the  words  true,  or  at  least  if  not  true,  that  there  is  so 
great  a  ])robalMlity  of  their  truth,  he  was  in  some  degree  justified  in 
considering  them  to  be  true.  I  agree  that  where  the  facts  amount  to 
a  defence  to  the  action  thev  are  admissible,  but  not  in  mitigation  of 

64 


506  Waggstaff  vs.  Ashton. 

damages;  as  in  the  ease  of  confidential  communications;  mere  repe- 
titions with  the  name  of  the  author  given  at  the  time;  representa- 
tions given  by  a  master,  without  malice,  of  the  character  of  a  ser- 
vant, &c.  (1  Term  Rep.  110.)  But  I  know  of  no  decision  that  the 
deft,  on  the  general  issue  may  prove  either  the  truth  of  the  words 
spoken  or  facts  tending  to  establish  their  truth.  In  the  case  of  Gos- 
lin  vs.  Cannon  in  Sussex  such  evidence  was  rejected.  It  appears 
to  me  that  the  case  from  Wendall  is  distinguishable  from  this  though 
I  have  not  had  the  time  to  examine  it ;  but  there  was  a  part  of  it  read 
with  much  emphasis  which  I  deny  to  be  law,  that  malice  is  the  only 
ground  of  damage.  The  damages  in  an  action  for  slander  must  de- 
pend on  a  variety  of  circumstances,  as  the  character  of  the  parties; 
the  injury  done  to  the  plff.  by  the  false  charge;  the  circumstances  of 
deft.,  &c.  &c. 

By  the  Court:  Chief  Justice  Clayton:  The  general  question 
has  been  considered  as  settled  in  the  courts  of  this  state,  but  it  is 
made,  in  this  case,  to  assume  a  somewhat  different  form  on  account 
of  the  disclaimer  and  notice  which  deft,  has  placed  on  the  record. 
The  practice  in  that  respect  is  new.  We  understand  that  he  pro- 
poses to  prove,  under  this  notice,  that,  though  the  charge  made  by 
him  against  the  plff.  is  false,  he  had  probable  cause  to  believe  that 
Waggstaff  was  perjured  in  swearing  that  he  was  not  indebted  to 
Clegg  because  he  had  admitted  his  indebtedness  after  the  attachment 
was  laid  in  his  hands  as  Clegg's  garnishee.  The  general  principle  is 
that  stated  in  2  Stark.  Ev.  878,  as  the  resolution  of  all  the  judges  in 
Underwood  and  Parks,  2  Strange,  1200,  that  evidence  of  the 
truth  of  the  words  is  not  admissible  either  in  bar  of  the  action  or  in 
mitigation  of  damages,  unless  specially  pleaded.  If  the  deft,  will 
insist  on  the  truth  of  the  charge  he  is  bound  to  give  the  plff.  notice 
by  the  pleadings.  And  if  the  truth  cannot  be  proved  under  the  gen- 
eral issue,  it  would  seem  to  follow  that  evidence  tending  to  prove 
it  must  be  rejected.  And  the  admission  of  facts  having  this  ten- 
dency must  necessarily  admit  facts  in  refutation  of  these;  thus  not 
only  calling  on  the  plff.  without  notice  to  defend  his  whole  life,  but 
forming  in  the  cause  numberless  collateral  issues.  And  if  the  proof 
of  one  fact  be  admitted  tending  to  show  the  actual  guilt  of  the  plff. 
other  facts" cannot,  on  principle,  be  rejected;  and  the  deft,  may  thus 
indirectly  prove  the  slander  true  against  the  implied  admission  of  the 
pleadings,  or  even  the  more  direct  admission  of  such  a  disclaimer  as 
this.  {Starkie  on  Slander,  410.)  We  cannot  say  that  we  are  pre- 
pared to  sanction  the  practice  adopted  in  this  case;  but  if  we  would 
regard  this  paper  as  a  part  of  the  pleadings  it  should  contain  the 
same  certainty  as  a  declaration  or  plea.  Ashton  alledges  that  he 
had  probable  cause  to  believe  the  plff.  was  perjured,  because  he  ac- 
knowledged his  indebtedness  to  Clegg  after  attachment  laid,  &c.  To 
whom  was  this  acknowledgment  made?  If  to  a  third  person  it  could 
not  possibly  be  proved  by  the  witness  now  called;  if  to  him,  as  is 
most  likely,  and  he  communicated  it  to  deft,  who  repeated  it,  it  is 
the  common  case  of  the  repetition  of  a  hearsay  slander  without  at 
the  time  giving  the  author.  Suppose  I  am  informed  by  A,  a  respec- 
table man,  that  B  has  admitted  himself  to  be  a  thief,  can  I  defend 
myself  under  the  plea  of  not  guilty  in  an  action  for  calling  B  a  thief. 


Waggstaff  vs.  Ashton.  507 

that  I  had  probable  ground  to  believe  so  arising  from  {his  informa- 
tion? and  shall  I  call  A  to  establish  my  defence?  And  if  I  do  so  is 
not  the  charge  proved? 

The  case  of  Gilman  vs.  Lowell  does  not,  as  the  deft.'s  counsel 
supposes,  establish  that  on  the  disclaimer  of  any  intention  to  prove 
the  truth  of  the  words  the  deft,  may  nevertheless  prove  facts  having 
this  tendency.  The  decision  in  that  case  was  that  circumstances 
which  disprove  malice,  but  do  not  tend  to  establish  the  truth  of  the 
charge  may  be  given  in  evidence  in  mitigation  of  damages;  and  it 
was  expressly  on  the  ground  that  "the  facts  offered  to  be  shown 
would  disprove  malice,  and  would  not  tend  to  prove  the  truth  of  the 
charge  of  false  swearing.  The  case  shows  that  this  was  so.  The 
charge  was  in  substance  that  the  plff.  had  perjured  himself  by  swear- 
ing that  a  certain  deed  was  on  the  record;  the  proof  offered  was  that 
deft,  was  induced  to  believe  him  perjured  because  from  an  omission 
to  index  the  record  of  this  deed  he  had  been  unable  to  find  it  after 
diligent  search,  but  that  the  record  had  not  since  been  found.  The 
proof  so  far  from  tending  to  show  the  guilt  of  the  plff.  beyond  all 
doubt,  established  his  innocence,  and  at  the  same  time  disproved  the 
malice  of  the  deft.  In  the  case  before  us  there  has  been  no  new  dis- 
closure of  circumstances  since  the  slander  was  uttered  to  remove  the 
imputation.  If  he  had  probable  ground  to  make  the  charge  then  he 
has  such  still.  And  what  was  this  ground?  That  after  the  attachment 
was  laid  in  plff.'s  hands  as  a  garnishee  of  Clegg  at  the  suit  of  deft,  he 
told  some  one  he  was  indebted  to  Clegg.  If  this  was  true  he  could 
not 'afterwards  remove  his  indebtedness.  If  this  was  true  his  subse- 
quent oath  "  that  he  was  not  at  the  time  of  the  attachment  served  or 
at  any  time  since  indebted  to  Clegg  in  any  sum  whatever,"  was  false. 
And  on  an  indictment  for  perjury  would  not  this  declaration  form  an 
important  link  in  the  chain  of  proof  to  convict  him  ?  Does  it  not  tend 
to  prove  the  truth  of  the  slanderous  words? 

We  are  of  opinion  that  the  evidence  is  not  admissible  either  un- 
der the  general  issue  or  on  the  disclaimer  and  notice  filed  in  this 
cause,    (a) 

The  plantiff  had  a  verdict  for  $300. 

J.  A.  Bayard,  for  plaintiff. 

B.  H.  Bayard,  for  defendant. 

(a)  The  declaration  set  forth  the  charge  of  perjury  without  any  collo- 
quium  that  it  was  in  the  course  of  a  judicial  proceeding ;  but  it  was  held 
good.  1  Chilty  PI.  383.  n.  "  To  say  that  the  plff.  has  sworn  false  or  taken 
a  false  oath  is  not  actionable  without  a  colloquium  of  its  being  in  a  cause 
pending  in  a  court  of  competent  jurisdiction  and  on  a  point  material  to 
the  issue."  Where  the  slander  is  prima  facie  actionable,  as  for  calling  a 
person  directly  a  thief  or  stating  that  he  was  guilty  of  perjury,  &c.  a  dec- 
laration stating  the  deft.'s  malicious  intent  and  the  slander  concerning 
the  plff.  is  sufficient  without  any  prefatory  inducement.  1  New  York 
Term  Rep.  347.  Action  is  not  sustainable  for  saying  one  is  forsworn; 
aliter,  that  he  is  perjured.  8  Wendall  573,  Oilman  vs.  Lowell.  Slander 
lies  for  saying  of  another  "he  has  sworn  falsely  and  I  will  attend  the 
grand  jury  respecting  it,"  without  a  colloquium  showing  the  speaking  of 
the  words  to  refer  to  proceedings  in  which  perjury  could  have  been  com- 
mitted. 


508  Griffin  vs.  Reece  and  wife. 

GEORGE  GRIFFIX  vs.  ADAM  REECE  and  ELIZABETH  his  wife, 

late  ELIZABETH  FISHER. 
Construction  of  the  terms  lien  and  incumbrance  in  the  dower  law  of  1816. 
Debts  contracted  prior  to  the  act  of  1816  not  preferred  to  dower  unless  they 

are  liens,  &c. 
The  decision  in  BrincMoe  vs.  Brinckloje,  Digest,  168,  n.  considered  and  confined 

to  the  particular  case. 
If  land  be  sold  by  the  sheriff  on  a  judgment  obtained  after  1816,  though  for  a 

debt  contracted  before,  it  is  liable  to  dower. 
A  sheriff's  sale  cannot  divest  the  claim  to  dower  any  more  than  a  voluntary 

sale  by  the  husband. 

Appeal  from  the  orphans'  court  of  Newcastle  county. 

This  was  a  petition  for  dower.  The  petitioner  Elizabeth  Reece, 
late  Elizabeth  Fisher,  claimed  dower  in  a  house  in  the  city  of  Wil- 
mington of  which  her  first  husband  George  Fisher  was  seized  during 
their  marriage.  The  marriage  took  place  prior  to  1814,  and  Fisher 
died  in  1829.  James  Dougal,  on  the  29th  May,  1816,  obtained  a 
judgment  against  George  Fisher,  under  which  judgment  the  house 
in  question  was  sold  in  1817,  and  bought  by  the  deft.  George  Grif- 
fin. The  debt  of  James  Dougal  was  created  prior  to  1816,  but  dur- 
ing the  marriage  of  Fisher  and  wife. 

The  claim  of  dower  was  resisted  on  the  ground  that  the  debt  of 
Dougal  under  which  the  house  was  sold  existed  prior  to  the  16  Feb- 
ruary, 1816;  that  it  was  a  lien  or  incumbrance  at  the  passing  of  the 
act  of  1816,  within  the  proviso  contained  in  that  act  and  cannot  be 
destroyed  by  that  act,  but  is  expressly  protected  by  it;  and  the  case 
of  the  widow  of  William  Brinckloe,  decided  in  1821  in  Kent*  by 
Chancellor  Ridgely  and  affirmed  on  appeal  by  the  supreme  court, 
was  urged  as  decisive  of  the  present  claim,  (a)     (Note  to  Digest, 

(a)  Eliza  Brinckloe  vs.  John  Brinckloe  and  others. 

Petition  to  be  endowed  out  of  the  lands  of  which  William  Brinckloe 
the  husband  of  the  said  Eliza  died  seized.  The  defts.  pleaded  that  they 
were  purchasers  of  the  land  which  had  been  sold  by  order  of  the  orphans' 
court  for  the  payment  of  the  debts  of  the  said  William  Brinckloe  con- 
tracted prior  to  the  16th  of  February,  1816.  The  petitioner  replied  that 
the  said  debts  were  not  such  liens  or  incumbrances  as  could  affect  her 
right  to  dower. 

The  Chancellor,  (Ridgely.) 

"  In  this  state  all  lands,  tenements  and  hereditaments,  where  no  suffi- 
cient personal  estate  can  be  found,  are  liable  to  be  seized  and  sold  upon 
judgment  and  execution  obtained.  1  Del.  Laws  110.  So  lands  may  by 
executors  (1  vol.  281)  and  by  administrators  (1  vol.  292)  by  order  of  the 
court  for  payment  of  debts.  By  these  acts  of  assembly  all  debts  are  in 
some  form  charged  upon  lands  and  made  liens  or  incumbrances,  so  as  to 
exclude  the  widow's  dower.  And  in  the  supplement  to  "An  act  for  the 
better  confirmation  of  the  owners  of  lands,  &c.  in  their  just  rights  and 
possessions"  (1  vol.  138)  it  is  declared  that  by  the  laws  of  this  govern- 
ment lands  were  always  subject  to  be  taken  in  execution  and  sold  for  the 
payment  of  debts,  as  well  as  to  be  sold  by  executors  and  administrators 
for  the  payment  of  their  intestates  and  testators  debts.  It  is  evident  then 
that  debts  always  have  been  incumbrances  on  land;  and  although  their 
effect  has  not  been  such  as  to  bind  or  charge  them  when  bona  fide  sold  by 
the  owner  in  his  lifetime ;  yet  in  all  cases  where  the  land  passes  by  the  op- 


Griffin  vs.  Eeece  and  wife.  509 

168,  BrincMoe  vs.  Brinckloe.  Debts  contracted  prior  to  the  pass- 
ing of  the  act  of  1816,  have  preference  to  the  widow's  claim  of 
dower.) 

eration  of  law,  or  by  devise  the  debts  are  liens  or  incumbrances  and  the 
wife,  heir  or  devisee  takes,  liable  to  be  affected  by  such  incumbrances. 
The  difference  consists  in  the  mode  of  proceeding  in  converting  these  as- 
sets into  money  for  the  satisfaction  of  the  debts,  and  not  in  the  liability 
of  the  land.  WTaen  the  land  is  sold  by  the  sheriff  on  an  execution  upon 
a  judgment  recovered  in  a  court  of  law,  or  by  an  executor  or  adminis- 
trator by  order  of  the  orphans'  court,  the  wife  is  completely  barred  of  her 
dower.  A  mortgage  is  a  lien  on  land  yet  if  the  wife  does  not  join  in  the 
deed,  and  the  land  after  the  death  of  the  husband  is  sold  by  process  of 
law  on  the  mortgage  the  wife  is  not  thereby  barred  of  her  dower.  This 
was  so  decided  in  the  high  court  of  errors  and  appeals  at  August  term 
1809,  in  the  case  of  Marshall  vs.  the  lessee  of  Daniel  Wolf.  But  if  there 
is  a  debt  or  bond  or  simple  contract,  and  the  husband  dies,  the  land  may 
be  sold  to  bar  the  dower  of  the  wife,  either  upon  judgment  recovered  at 
law  or  by  order  of  the  orphans'  court.  In  these  instances  the  debts  oper- 
ate according  to  the  nature  of  the  securities.  The  bond  or  simple  con- 
tract debt  is  a  lien,  or  incumbrance,  or  charge  on  the  land,  and,  after  the 
death  of  the  husband,  attaches  and  must  be  paid  before  the  wife  can  take 
her  dower,  but  the  mortgage  has  no  such  effect,  and  the  reason  is  because 
the  law  charges  the  bond  or  simple  contract  debt  on  the  land  and  the 
mortgage  is  a  lien  by  the  act  of  the  party  and  the  wife  not  having  joined 
in  it  she  is  not  barred.  A  judgment  recovered  after  the  marriage  did  not 
at  common  law  bar  a  widow  of  her  dower ;  but  the  acts  of  assembly  before 
mentioned  made  them  liens  or  incumbrances  against  the  wife,  and  made 
a  common  debt  as  to  her  as  much  a  lien  or  incumbrance  as  a  debt  on  judg- 
ment. In  giving  a  construction  to  the  act  of  1816,  the  words  lien  or  in- 
cumbrance must  be  expounded  according  to  the  intention  of  the  legisla- 
ture and  the  subject  matter.  When  the  legislature  excepted  liens,  or  in- 
cumbrances existing  before  the  passing  the  act  they  excepted  all  such 
charges,  burdens,  liens  or  incumbrances,  no  matter  by  what  name  they 
were  called  as  before  that  act  prevented  a  widow  from  recovering  her 
dower.  The  general  provision  of  the  act  is  that  the  wife  shall  be  entitled 
to  dower  in  preference  to  all  charges  and  incumbrances  created  by  the 
husband  alone  after  the  marriage,  but  it  was  felt  that  it  would  be  a  breach 
of  faith,  a  violation  of  contract  to  give  the  wife  a  right  of  dower  para- 
mount the  debts  which  had  been  created  and  were  incumbrances  before 
the  act  was  passed,  and  therefore  they  provided  that  nothing  therein  con- 
tained should  be  construed  or  taken  to  affect  or  destroy  any  lien  or  in- 
cumbrance existing  before  the  passing  the  act.  A  judgment  recovered 
after  the  marriage  no  more  barred  the  wife,  than  a  debt  not  upon  judg- 
ment ;  but  on  the  death  of  the  husband  they  both  attached  and  barred  her ; 
and  therefore  they  both  alike  were  incumbrances  as  to  her  and  are  except- 
ed. It  was  not  designed  by  this  act  to  break  in  upon  the  existing  rights 
of  the  parties;  but  prospectively  to  adopt  a  new  system  in  relation  to 
dower.  And  certainly  no  wrong  was  done  to  the  wife  by  leaving  the  law 
as  to  past  cases  precisely  the  same  as  it  stood  at  the  time  the  act  was 
passed.  Whatever  may  be  the  technical  meaning  of  the  word  lien  or  in- 
cumbrance we  must  use  and  construe  them  according  to  the  sense  of  the 
legislature  and  so  as  to  give  effect  to  the  act  of  assembly,  see  1  Vern.  309, 
Norteti  vs.  Sprig;  a  bond  given  by  a  widow  who  afterwards  married,  is 


510  Griffin  vs.  Reece  and  wife. 

The  orphans'  court,  nevertheless,  decreed  dower  in  the  present 
case,  distinguishing  it  from  the  case  of  Brinckloe  vs.  Brinckloe, 
and  deciding:  First.  That  a  sale  by  the  sheriff  of  the  real  estate  of 
the  said  George  Fishfi,  under  the  judgment  of  James  Dougal,  could 
no  further  bar  the  widow's  right  of  dower  than  a  conveyance  of  that 
real  estate  by  George  Fisher  himself,  in  May,  1816,  would  have 
done:  Second.  That  George  Fisher  by  such  conveyance  could  not 
have  debarred  his  widow  of  her  dower:  Third.  That  as  the  prem- 
ises in  question  were  sold  by  the  sheriff  under  the  judgment  of 
James  Dougal,  which  did  not  attach  to  the  premises  and  become  a 
lien  thereon  until  after  the  16th  of  February,  1816;  and  as  that  debt 
and  judgment  had  been  extinguished  in  the  lifetime  of  the  said 
George  Fisher  by  satisfaction  out  of  the  sales  of  those  premises,  and 
did  not  exist  at  his  decease  in  1829,  it  could  not  and  did  not  attach 
to  his  real  estate  on  his  decease  and  become  a  lien  or  incumbrance 
thereon  according  to  the  principle  decided  in  Mrs.  Brinckloe's  case 
"  that  debts  created  prior  to  1816  and  existing  at  the  decease  of  the 
debtor  attach  to  his  lands  on  his  decease  and  become  a  lien  or  incum- 
brance paramount  to  the  widow's  claim  of  dower."  Fourth.  That 
the  debt  of  James  Dougal  was  not  a  lien  or  incumbrance  on  his  real 
estate  at  the  death  of  Fisher,  because  it  had  been  satisfied  in  his  life- 
time. Fifth.  That  during  his  life  it  was  not  a  lien  or  incumbrance 
on  his  real  estate  until  judgment  was  obtained  therefor,  which  was 
on  the  29th  May,  1816,  after  the  passing  of  the  act  of  1816,  securing 
the  right  of  dower  to  the  widow:  and,  sixth.  That  Fisher  between 
the  16th  of  February  and  29th  of  May,  1816,  could  have  conveyed 
the  said  house  and  lot  free  from  any  lien  or  incumbrance  of  Dougal's 
debt,  but  such  conveyance  would  not  have  barred  his  wife  of  her 
dower  therein. 

Whereupon  an  appeal  was  prayed  and  granted;  and  the  question 
here  was  whether  upon  the  foregoing  statement  of  facts  the  petitioner 
Elizabeth  Reece,  late  Elizabeth  Fisher,  was  entitled  to  dower  under 
ihe  provisions  of  the  act  of  16th  February,  1816,  in  the  premises 
in  question,  as  against  Griffin  the  purchaser  at  a  sheriff's  sale  made 
by  virtue  of  Dougal's  judgment. 

Hamilton,  for  the  purchaser.  The  case  depends  on  a  construc- 
tion of  our  act  of  assembly.  Before  that  act  there  is  no  doubt  that 
a  widow  would  not  be  entitled  to  dower  as  against  the  creditors  of  her 
husband.  The  act  declares  that  "  the  widow  of  any  man,  who  shall 
die  after  the  passing  of  this  act,  and  who  during  their  marriage  was 
seized  of  an  estate  of  inheritance  in  any  lands  or  tenements  within 
this  State,  shall  have  the  third  part  of  all  the  lands  and  tenements, 
whereof  her  said  husband  was  seized  as  afsd.  at  any  time  during  the 
marriage,  to  hold  to  her  as  tenant  in  dower  for  and  during  the  term 
of  her  natural  life,  free  and  discharged  from  all  and  every  the  alien- 
ations, covenants,  debts,  liens  and  incumberances  made,  entered  into, 
contracted  or  created  by  the  said  husband  after  the  intermarriage, 

called  by  the  court  a  Hen  by  deed,  and  3  Burr.  1375,  Monhcaster  vs.  Wat- 
son et  al.  the  words  charges  and  incumbrances  were  said  to  mean  incum- 
brances on  the  estate  as  dower,  &c.  With  my  view  of  the  subject  it  is  un- 
necessary to  enter  into  a  consideration  of  the  constitutionality  of  the  act. 
The  legislature  did  not  interfere  with  past  contracts,  they  left  them  in 
full  force;  and  by  no  means  impaired  their  obligation. 


Griffin  vs.  Keece  and  wife.  511 

Tinless  she  shall  have  relinquished  her  right  of  dower  therein  by  her 
own  voluntary  act  according  to  the  existing  laws  of  this  State :  Pro- 
vided always  that  nothing  herein  contained  shall  be  construed  or 
taken  to  affect  or  destroy  any  lien  or  incumberance  existing  before  the 
passing  of  this  act."  The  law  speaks  of  debts,  &c.  contracted  by 
the  husband;  this  must  evidently  mean  debts  contracted  after  the  pass- 
ing of  the  law  or  it  would  be  unconstitutional.  It  is  admitted  that 
this  debt  of  Dougal's  was  contracted  before  the  passing  of  the  act. 
As  the  law  then  stood,  Fisher's  land  was  liable  to  be  sold  for  this 
debt  discharged  of  any  claim  of  dower,  and  it  was  not  competent  for 
the  legislature  to  vary  or  affect  this  contract  liability.  I  agree  that 
after  the  law  all  contracts  are  governed  by  it,  for  the  contracts  are 
made  in  reference  to  the  law  and  the  law  becomes  a  part  of  the  con- 
tract; but  not  so  of  debts  contracted  before  the  law.  But  this  debt 
was  a  lien  or  incumbrance  according  to  the  construction  placed  on 
those  terms,  as  used  in  the  proviso  to  the  act  of  assembly,  in  the  case 
of  Brinckloe  and  Brinckloe,  which  is  not  distinguishable  from  this. 
In  the  orphans'  court  a  man's  lands  are  liable  to  be  sold  for  the  pay- 
ment of  his  debts  as  well  simple  contract  as  those  which  are  reduced 
to  judgment  or  mortgage  or  recognizance;  in  that  court  therefore  all 
the  debts  of  a  man  are  regarded  as  liens  or  incumbrances  on  his  lands, 
and  wherever  such  debts  exist  prior  to  1816,  they  have  preference 
to  the  widow's  claim  of  dower.  Dig.  168,  note,  Brinckloe  vs. 
Brinckloe.  This  case  also  is  distinct  from  a  voluntary  conveyance 
by  the  husband  without  his  wife :  the  sale  was  on  execution  process  and 
the  conveyance  by  operation  of  law  without  the  will  of  the  husband. 

The  Court,  without  hearing  Wales  for  the  petitioner,  affirmed 
the  decree  of  the  orphans'  court.  They  remarked  upon  the  case  of 
Brinckloe  and  Brinckloe,  as  having  been  decided  on  very  refined,  if 
not  questionable  grounds;  but  said  that  they  would  nevertheless  con- 
sider it  in  a  case  exactly  similar,  of  obligatory  authority  to  the  ex- 
tent to  which  it  went  but  no  further.  They  thought  this  was  not 
such  a  case  clearly  distinguishable,     (h.) 

In  the  case  of  Mrs.  Brinckloe  her  husband  died  seized  of  the  lands 
of  which  she  asked  to  be  endowed.  Those  lands  had  been  sold  by 
order  of  the  orphans'  court  for  the  payment  of  debts  contracted  prior 
to  1816,  and  which  were  existing  debts  at  the  time  of  his  decease. 
The  claim  was  resisted  on  that  ground  by  the  purchasers  of  the  land; 
and  their  title  under  the  sale  made  by  order  of  the  orphans'  court  was 
held  paramount  to  the  widows  right  of  dower  under  the  act  of  1816. 
The  extent  therefore  of  that  decision  was  the  debts  created  before 
the  16th  of  February,  1816,  and  remaining  unpaid  at  the  decease  of 
the  owner  of  the  land,  became  on  his  death,  when  his  land  passed 
by  devise  or  the  operation  of  law  to  his  widow,  heirs  or  devisee, 
liens  on  his  lands,  and  which  were  to  be  satisfied  out  of  those  lands 
in  preference  to  the  widow's  claim  of  dower;  and  that  on  a  sale  by 
order  of  the  orphans'  court  to  pay  such  debts,  the  widow  is  not  en- 
titled to  dower. 

(6)  In  Gordon  vs.  Harris— Sussex,  1822.  The  Chancellor  (Ridgely) 
decided  that  though  the  debt  was  contracted  or  created  prior  to  the  act  of 
1816,  a  bond  or  judgment  subsequently  taken,  for  the  same  debt,  would  not 
bar  the  widow's  claim  of  dower.  He  regarded  the  new  form  of  security 
as  a  new  contract ;  which,  being  after  the  law,  fell  within  its  provisions. 


512  Griffin  vs.  Reece  and  wife. 

Three  things,  according  to  the  decision  in  Brinckloe's  case,  were 
necessary  to  complete  the  lien  of  a  creditor,  which  would  overreach 
the  widow's  claim  of  dower:  First.  The  existence  of  the  debt  prior 
to  the  16th  February,  1816.  Second.  The  death  of  the  debtor. 
Third.  The  existence  of  the  debt  at  the  decease  of  the  debtor.  On 
the  decease  of  the  debtor  and  not  till  then,  the  debt  attached  to  the 
land  and  became  a  lien  or  incumbrance,  because  the  debtor  during 
his  life,  (no  judgment  having  been  obtained)  could  have  conveyed 
his  land,  bona  fide,  free  and  unembarrassed  of  all  his  debts  secured 
by  bond  or  simple  contract:  such  debts,  therefore,  were  not  a  lien  or 
incumbrance  on  his  land  so  long  as  he  lived.  As  the  death  of  the 
party  was  necessary  to  consummate  the  lien  or  incumbrance  by  the 
extinguishment  of  the  debt  in  the  lifetime  of  the  debtor,  it  would 
seem  necessarily  to  follow  that  such  a  debt  never  had  existed  as  a 
lien  or  incumbrance,  according  to  the  principle  established  in  the 
case  of  Brinckloe,  for  by  that  case  to  make  it  a  lien  or  incumbrance 
which  would  be  paramount  to  the  claim  of  the  widow,  it  must  have 
existed  prior  to  the  act  of  1816,  and  must  have  continued  to  exist 
till  the  decease  of  the  debtor:  on  the  decease  it  attached  to  the  land 
and  was  held  as  against  the  widow,  a  lien  or  incumbrance  from  the 
creation  of  the  debt,  if  before  February,  1816,  but  both  the  existence 
of  the  debt  at  the  decease  of  the  debtor,  and  the  decease  of  the  debtor 
are  necessary  according  to  that  case  to  establish  and  perfect  the  lien 
and  to  carry  its  operation  back  to  a  period  prior  to  the  passing  of  the 
act  of  1816,  so  as  to  defeat  the  claim  for  dower:  that  case  does  not 
establish  the  principle  that  debts  which  a  man  might  owe  on  bond  or 
simple  contract  and  which  were  satisfied  before  his  death,  were  ever 
liens  on  his  land  or  are  to  be  held  as  liens  after  his  decease  so  as  to 
debar  his  widow  of  dower.  The  decision  in  Brinckloe's  case  en- 
larged the  class  of  liens  and  incumbrances  and  comprehended  by 
those  terms  what  had  not  before  been  supposed  to  be  embraced  within 
them,  that  is,  debts,  not  reduced  to  judgment,  mortgage  or  recog- 
nizance, which  might  remain  unsatisfied  at  the  decease  of  the  debtor, 
and  that  such  debts  should  operate  as  liens  against  the  widow's  claim 
of  dower,  from  the  time  of  their  creation.  At  the  death  of  George 
Fisher,  in  1829,  there  was  no  debt  due  from  him  to  James  Dougal 
and  it  cannot  therefore  be  held  that  Dougal's  debt  was  a  lien  on  the 
lands  of  Fisher,  according  to  the  principle  as  to  liens  first  established 
in  Brinckloe's  case.  Dougal's  debt  was  reduced  to  judgment  on  the 
29th  May,  1816:  it  then  became  a  lien  and  not  before,  for  till  then 
Fisher  had  full  power  to  convey  his  land  free  from  any  operation  or 
incumbrance  of  this  debt,  but  such  a  conveyance  would  not  have  de- 
barred his  widow's  claim  of  dower.  On  this  judgment  the  land  of 
Fisher  was  sold  in  1817,  and  the  debt  of  Dougal  by  that  sale  dis- 
charged. Can  a  sale  by  the  sheriff  on  a  judgment  obtained  after  the 
16th  February,  1816,  preclude  the  widow  from  her  dower,  when  a 
bona  fide  conveyance  Ky  the  debtor  himself  would  not  be  permitted 
to  have  this  effect?  By  the  act  of  1816  there  is  secured  to  her  dower 
in  all  lands  of  which  her  husband  was  seized  during  the  marriage, 
"  free  and  discharged  from  all  and  every  the  alienations,  covenants, 
debts,  liens  and  incumbrances  made,  entered  into,  contracted  or 
created  by  the  husband  after  the  intermarriage : "  she  takes  it  free 
from  all  his  covenants,  debts,  liens  and  incumbrances,  except  merely 


Farmers"  Bank  vs.  Keynolds.  513 

those  liens  and  incumbrances  (not  debts)  which  existed  prior  to 
that  act.  The  only  character  as  a  lien  which  Dougal's  debt  ever 
possessed,  was  when  it  became  a  judgment  in  May,  1810,  and  that 
character  ceased  when  the  judgment  was  extinguished  by  the  sale. 
Both  the  judgment  and  the  debt  were  extinguished  in  1817,  and 
there  remained  at  Fisher's  death  in  18^9  no  debt  which  coiild  attach 
as  a  lien  to  the  house  and  lot.  The  sale  made  of  the  house  and  lot 
to  Griffin  by  the  sheriff  was  under  a  lien  created  on  29th  May,  1816, 
the  day  when  judgment  was  obtained. 

Decree  affirmed. 

Wales,  for  petitioner. 

Hamilton,  contra. 


THE  PRESIDENT  DIRECTORS  &  CO.  of  the  FARMERS'  BANK 
vs.  JOHN  REYNOLDS. 

A  fi.  fa.  cannot  issue  on  a  judgment  after  the  death  of  the  deft,  and  a  term 

elapsed  without  a  previous  sci.  fa. 
Nor  can  an  alias  issue  in  such  a  case,  founded  on  a  previous  fi.  fa.  vice  comes 

where  several  terms  have  intervened  without  a  continuance  of  the  process. 

Judgment  D.  S.  B. 

Fi.  fa.  vice  comes  &c.  alias  fi.  fa.  returned  levied  on  lands,  &c. 
Inquiry  held  and  not  sufficient. 

Wales  and  Bayard  pro.  deft,  obtained  a  rule  to  show  cause  why 
the  inquisition  in  this  case  should  not  be  set  aside  and  the  alias  fi.  fa. 
quashed.  The  judgment  was  entered  on  the  18th  September.  1818, 
and  a  fi.  fa.  issued  to  December  term  1819,  which  was  marked  vice 
comes  non  misit  breve.  No  other  execution  process  issued  until 
after  the  May  term  1831,  when  an  alias  fi.  fa.  was  taken  out  return- 
able to  the  November  term  1834,  on  which  this  inquisition  was  held. 
John  Reynolds,  the  deft,  in  the  judgment  died  on  the  25th  !March, 
3833. 

Read,  Jr.  for  plff.  showed  cause  and  insisted  that  a  party  had  the 
right  to  sue  out  his  alias  fi.  fa.  at  any  time  after  execution  process 
commenced,  and  without  any  scire  facias  even  though  a  death  should 
intervene;  and  he  stated  that  this  was  the  uniform  and  unquestioned 
practice  of  the  bar  in  this  county.  After  the  first  fi.  fa.  the  party 
has  the  right  to  bring  up  his  continuances  by  entries  of  vice  comes 
on  the  record. 

The  deft.'s  counsel  said  that  after  the  death  of  the  deft.,  or,  at 
most,  after  one  term  had  elapsed,  the  party  could  not  issue  a  fi.  fa. 
without  a  previous  scire  facias.  The  execution  might  perhaps  be 
issued  after  the  death  of  the  party  by  relation  to  the  previous  term, 
but  not  after  a  term  had  gone  by.  It  was  also  suggested  that  the 
first  fi.  fa.  was  not  within  the  year  and  day  from  the  date  of  the 
judgment.     It  was  not  dated,  but  bore  test  as  of  May  term,  1819. 

The  Court  said  it  was  in  time  by  relation;  but  they  made  the  rule 
absolute  on  the  other  ground. 

Rule  absolute. 

Read,  Jr.  for  plff. 

Wales  and  R.  II.  Bayard,  for  deft. 

65 


614  Farmebs*  Bank  vs.  Horsey  and  McLane. 


The  PRESIDENT,  DIRECTORS  &  CO.  of  the  FARMERS'  BANK 
vs.  OUTERBRIDGE  HORSEY  and  LOUIS  McLANE 

In  a  scire  facias  on  a  judgment  against  two  defendants,  one  of  them  cannot 
plead  that  he  is  a  surety  and  discharged  by  agreement  giving  time  to  his 
principal. 

Oyer  of  the  bond  is  not  demandable  after  judgment. 

At  law  all  the  obligors  in  a  bond  are  principals:  the  defence  therefore  that 
gurety  has  been  discharged  by  agreement  between  the  creditor  and  principal 
debtor  cannot  be  set  up  at  law  though  available  in  equity. 

Sci.  fa.  on  judgment  D.  S.  B.  Plea  that  the  said  Louis  McLane 
is  the  suret)'  of  the  said  Outerbridge  Horsey  and  has  been  discharged 
from  his  liability  by  plffs'.  having  given  time  to  his  principal  without 
his  consent.    Demurrer. 

Bayard.  I  can't  conceive  on  what  grounds  the  deft,  expects  to 
support  his  plea  in  a  court  of  law.  The  question  of  oyer  is  itself  con- 
clusive. The  deft,  has  no  right  to  oyer  after  judgment.  The  judg- 
ment concludes  the  case  at  law;  if  there  be  any  defence  arising  after- 
wards it  may  be  set  up  to  the  sci  fa.,  but  for  matters  which  might 
have  been  pleaded  to  the  original  suit  the  party  must  go  into  equity; 
or,  in  some  cases,  apply  to  the  equity  side  of  this  court.  At  law  all 
the  obligors  in  a  bond  are  principals:  any  averment  against  it  is 
against  the  deed  and  is  estopped  by  the  deed,  and  it  is  no  defence  in 
an  action  on  a  bond  against  the  surety  that  the  plif.  gave  time  by 
parol  to  the  principal;  7  Eng.  C.  law  Rep.  62;  a  parol  agreement 
would  not  bind  the  plff.  himself  so  as  to  prevent  his  proceeding  on  the 
bond;  of  course  the  surety  cannot  be  injured;  4  Eng.  C.  L.  R.  8; 
Croke  Eliz.  697;  6  Coke's  Rep.  43  b.  Blake's  case;  8  East.  344 
Braddick  vs.  Thompson;  1  East  619,  Heard  vs.  Wadham;  2  Com. 
L.  R.  247,  Thompson  vs.  Brown;  3  T.  Rep.  590,  Littler  vs.  Hol- 
land. No  arrangement  can  be  pleaded  unless  it  be  evidenced  by 
matters  of  as  high  a  nature  as  the  original  obligation.  The  arrange- 
ment by  a  corporation  must  be  under  seal ;  and  this  must  be  averred 
and  not  left  to  inference;  2  Lord  Raymond  1536;  2  Levinz.  234, 
Blennerhasset  vs.  Pearson  is  conclusive  on  two  points  of  the  case. 
I  submit  then  that  the  deft,  in  this  case  cannot  set  up  an  agreement 
by  parol  to  give  time  to  Horsey  as  a  discharge  of  McLane.  The  judg- 
ment is  of  at  least  as  high  a  nature  as  the  bond,  and  I  care  not  to 
make  it  any  more  obligatory  for  such  an  agreement  could  not  be 
pleaded  to  the  bond ;  first :  Because  the  agreement  of  a  corporation  is 
not  well  pleaded  without  averring  a  consideration  and  that  it  is  under 
seal ;  second :  Because  no  parol  agreement  can  be  set  up  at  law  against 
a  sealed  instrument,  for  such  an  instrument  can  be  discharged  only 
by  matter  of  as  high  a  nature;  and  thirdly:  Because  the  relation  of 
principal  and  surety  cannot  appear  at  law,  and  does  not  exist,  for  all 
are  principals. 

Latimer,  for  defendant  McLane.  There  are  two  questions;  first: 
whether  the  giving  time  to  the  principal  debtor  discharges  his  surety ; 
and  second:  whether  that  defence  can  be  set  up  at  law.  The 
principle  is  very  broadly  laid  down  that  in  all  cases  the  giving  of 
time,  by  agreement  with  the  principal,  is  a  discharge  of  the  surety. 


Farmers'  Bank  vs.  Horsey  and  McLane.  515 

It  is  undoubtedly  so  in  equity:  —  is  it  so  at  law?  I  contend  that 
wherever  the  character  of  the  party  as  surety  can  be  fairly  made  out 
on  the  face  of  the  instrument  by  which  he  is  bound,  this  defence  may 
be  set  up  as  well  at  law  as  in  equity.  The  principles  of  the  two 
courts  are  the  same,  and  it  is  the  form  of  the  instrument  that  usually 
drives  the  party  into  equity.  Wherever  the  court  can  get  at  the 
character  of  the  parties,  the  discharge  is  as  effectual  at  law  as  in 
equity.  2  Vezey  Jr.  541,  Rees  vs.  Be^rington ;  6  Vezey  Jr.  734, 
Wright  vs.  Simpson;  3  Bos.  &  Pul.  363,  Clark  et  al,  Ex'rs.  vs. 
Devlin,  which  was  a  case  at  law,  and  3  ^Vash.  cir.  court  Rep.  75, 
U.  States  vs.  Hillegas'  Ex'rs.  which  was  also  a  case  at  law  and  de- 
cided on  the  equitable  principle.  And  no  doubt  is  entertained  that 
a  surety  when  he  appears  as  such  in  a  court  of  law  can  avail  himself 
of  this  defence  there  as  well  as  in  equity.  Then  we  contend  that  the 
relation  of  these  defts.  as  principal  and  surety  does  appear  on  the  face 
of  this  bond;  and  this  brings  up  the  question  whether  this  defence, 
if  available  at  law,  can  be  set  up  by  way  of  plea  to  a  scire  facias  on 
the  judgment  heretofore  obtained  on  this  bond.  There  has  never 
been  any  other  opportunity  afforded  this  deft,  to  make  this  defence. 
The  judgment  is  by  confession  on  warrant  of  attorney  and  without 
writ.  The  scire  facias  is  a  continuance  of  the  original  action,  and 
any  defence  applicable  to  the  former  may  be  made  to  it.  1  Sellen's 
Prac.  275;  6  Term  Rep.  1.  368.  The  deft,  may  crave  oyer  when- 
ever he  has  the  right  to  plead;  and  wherever  the  plff.  founds  his 
action  on  a  deed  he  must  make  profert  of  it  and  oyer  is  demandable, 
1  Sellen's  Prac.  285.  It  was  not  necessar}^,  in  pleading,  to  state 
the  agreement  to  be  under  seal;  for  particularity  of  statement  is  ex- 
cused when  the  matter  is  peculiarly  within  the  knowledge  of  the 
other  side;  and  if  the  character  of  principal  and  surety  is  apparent, 
the  giving  of  time  is  a  discharge  though  it  be  not  by  writing  under 
seal.  The  place  of  such  agreement  is  not  material  and  need  not  be 
set  out;  2  H.  Blac.  161. 

Bayard,  in  reply  was  stopt  by  the  court. 

The  principal  question  was  decided  by  this  court  in  the  case  of 
McDowell  vs.  the  Bank  of  Wilmington  and  Brandywine  (ante 
27)  when  it  was  held  that  the  discharge  of  an  indorser  by  the  acts  of 
the  holder  of  a  note  could  not  be  set  up  as  a  defense  at  law  after 
judgment.  The  matter  relied  upon  in  this  case  as  a  discharge  of  the 
surety  could  not  avail  him  in  this  court  even  before  judgment,  for  he 
stands  as  a  principal  in  the  bond  and  must  be  regarded  as  such  here. 
In  the  present  state  of  the  pleadings  even  this  question  is  out  of  the 
way,  for  the  bond  is  not  set  out  in  the  plea,  and  does  not  appear  any 
where  on  the  record;  nor  was  oyer  of  it  demandable  after  judgment. 

Demurrer  allowed. 
Judgment  for  plaintiff. 

J.  A.  Bayard,  for  plff. 

Latimer  and  Read,  Jr.  for  defts. 


filB  Henrietta  Grubb  vs.  Amer  Grubb. 


HEXEIETTA  GRUBB  vs.  AMER  GRUBB. 

On  a  decree  of  divorce  the  court  will  inquire  into  waste  committed  by  the 
husband  on  the  wife's  land  since  the  petition  and  compensate  her  for  it  out 
of  the  husband's  estate. 

Divorce  decreed  in  a  case  of  extreme  cruelty. 

Petition  for  Divorce,  on  the  ground  of  extreme  cruelty. 

The  deft,  appeared  and  denied  the  facts  stated  in  the  "petition. 

A  case  of  extreme  cruelty  was  fully  made  out  by  the  proof.  On 
the  investigation  of  the  husband's  circumstances  and  of  the  property 
Vhich  came  to  him  by  the  wife,  testimony  was  offered  in  relation  to 
waste  committed  by  the  husband  on  the  wife's  land  before  and  since 
these  proceedings  were  instituted.     It  was  objected  to. 

J.  A.  Bayard.  The  wife's  real  estate  is,  upon  a  divorce  arising  from 
the  aggression  of  the  husband,  to  be  restored  to  her  of  course;  the 
allowance  above  that,  is  to  be  made  in  reference  to  the  personal  prop- 
erty which  came  by  her  and  to  the  husband's  means  at  the  time  of 
the  divorce.  This  is  the  measure  of  restitution  pointed  out  by  the 
act.  (8  Del.  Laws  148,)  and  the  only  object  of  the  investigation  into 
the  husband's  means.  The  issues  of  the  wife's  real  estate  during  the 
marriage  belong  to  the  husband. 

R.  H.  Bayard.  The  purview  of  the  act  relates  to  the  advan- 
tages which  the  husband  has  derived  from  the  wife's  property.  In 
proportion  to  that  she  is  to  be  compensated.  Whatever  may  be 
the  view  as  to  waste  committed  before  the  libel,  waste  done  after 
ought  certainly  to  be  considered  by  the  court  in  making  an  allowance 
to  the  wife. 

Wales.  We  propose  to  show  that  on  the  commencement  of  these 
proceedings  for  divorce  the  respondent  began  a  system  of  pillage  of 
the  wife's  real  estate  by  cutting  timber,  removing  fences,  &c.  The 
object  of  the  testimony  is  to  enable  the  court  to  reinstate  the  peti- 
tioner as  near  as  possible  to  her  condition  before  marriage. 

J.  A.  Bayard.  If  you  open  the  inquiry  beyond  the  purposes 
mentioned  in  the  act,  where  are  you  to  stop?  Why  not  go  into  an 
inquiry  whether  the  husband  cultivated  the  land  in  the  best  manner; 
the  habits  of  the  wife  as  to  extravagance  or  otherwise,  and  the  whole 
circle  of  examination  into  benefits  or  advantages  which  he  may  have 
derived  from  the  marriage. 

The  Court.  The  husband  would  be  entitled  to  all  the  proper  is- 
sues from  the  wife's  lands  during  the  marriage;  but  if  he  has,  since 
the  filing  the  petition,  wantonly  wasted  the  inheritance,  the  court 
cannot  restore  her  to  all  her  lands  and  make  a  "  reasonable  allowance 
out  of  the  husband's  real  and  personal  estate  "  without  inquiring  into 
and  compensating  her  for  this  destruction. 

Testimony  admitted  but  confined  to  waste  done  since  the  petition 
was  filed. 

Decree  of  Divorce. 

R.  H.  Bayard  and  Wales,  for  petitioner. 

J.  A.  Bayard,  for  respondent. 


Porter  vs.  Sawyer.  517 


ALEXANDER  PORTEIl  vs.  JOSEPH  SAWYER. 

A  bet  on  the  nomination  election  of  candidates  for  the  coroner's  office  is  illegal 

and  void. 
A  check  deposited  in  the  hands  of  a  stakeholder  cannot  be  recovered  in  an 

action   for   money  had  and   received ;   he  is   liable   for   the  deposit-  only  as 

received. 

Case.  The  narr  was  in  assumpsit  for  money  had  and  received; 
money  lent,  &c.  and  on  an  account  stated. 

The  deft,  pleaded  "  tion  assumpsit  except  as  to  the  sum  of  fifty 
dollars  parcel  of  the  several  moneys  in  the  declaration  mentioned; 
and  a  tender  as  to  said  sum  of  fifty  dollars,  parcel  &c.  and  brings  the 
same  here  into  court,  &c."    Replications  and  issues. 

The  action  was  against  a  stakeholder  of  a  wager  on  the  event  of  a 
nomination  election  held  by  the  Jackson  party  of  Newcastle  county, 
for  the  selection  of  a  candidate  for  the  office  of  coroner  of  that  county. 
The  bet  was  between  Alexander  Porter  the  plff.  and  a  certain 
Joseph  Williams  of  fifty  dollars  on  each  side,  and  was  in  these  words, 
"  that  if  Michael  Downey  should  receive  more  votes  in  the  city  of 
Wilmington  and  hundred  of  Christiana  for  the  nomination  as  coro- 
ner than  Joseph  Williams  would  receive  in  the  whole  county,  then 
Porter  was  to  win;  otherwise  Williams  to  win."  The  stakes  were 
deposited  in  the  hands  of  defendant,  to  wit:  fifty  dollars  in  cash  by 
Porter,  and  a  check  on  the  Farmers'  Bank  for  fifty  dollars  by  Wil- 
liams. Porter  won  the  bet  and  demanded  the  money  of  the  stake- 
holder who  refused  to  pay  it,  having  been  notified  by  Williams  not 
to  pay  it  over,  but  he  tendered  to  Porter  fifty  dollars.  Deft,  pre- 
sented the  check  of  Williams  at  Bank  in  order  to  have  it  cashed, 
but  payment  had  been  stopped  and  it  was  refused. 

Booth,  for  deft.  The  wager  is  illegal  and  no  action  can  be  sup- 
ported u))on  it.  Tlie  English  courts  have  lately  set  their  faces  against 
suits  on  trifling  wagers  and  have  regretted  that  the  door  was  ever 
opened  to  this  kind  of  litigation.  This  was  a  bet  of  that  character. 
It  is,  again,  the  policy  of  the  courts  to  discountenance  betting  of 
every  description  on  account  of  its  immoral  tendency.  But  accord- 
ing to  the  principles  of  the  common  law  no  wager  which  was  against 
})ublic  policy  or  against  morality  could  be  sustained.  The  subject 
matter  of  this  bet  is  within  this  prohibition;  it  is  contrary  to  public 
policy;  tends  to  sap  the  foundation  of  our  public  institutions,  to  im- 
pair the  purity  and  freedom  of  elections.  It  does  not  vary  the  case 
that  this  l)et  was  merely  on  a  nomination  election  and  not  upon  the 
final  vote  for  the  officer,  its  tendency  is  the  same;  it  has  its  influence 
on  the  election  and  that  influence  is  a  corrupting  one.  If  you  taint 
the  fountain  the  stream  must  be  impure.  Every  bet  on  the  result  of 
a  nomination  is  to  that  extent  a  bribe  of  votes  and  influence;  and, 
considering  the  effect  of  party  discipline  in  our  country,  the  votes 
and  influence  thus  acquired  have  a  certain  effect  on  the  final  election. 
And  in  this  way  men  totally  unqualified  may  be  bribed  into  office 
through  the  medium  of  bets.  The  payment  into  court  is  an  admis- 
sion of  the  plff.'p  right  of  action  to  that  extent,  but  to  no  more;  and 
as  to  the  balance  of  this  deposit;  even  if  the  court  and  jury  should 
sustain  the  principle  of  j^uch  wagers,  we  contend  that  the  plff.  cannot 


518  PoHTER  VS.  Sawyer. 

recover  it  in  an  action  for  money  had  and  received  to  his  use.  It 
was  not  money  but  a  check  for  the  payment  of  money,  the  mere  evi- 
dence of  a  debt  and  on  which  no  money  was  ever  received.  The 
deft,  who  is  but  a  stakeholder  is  not  bound  to  answer  for  this  deposit 
in  money  but  in  specie,  and  if  liable  at  all  it  is  not  in  this  form  of 
action. 

Bayard.  I  hold  that  if  a  man  makes  a  lawful  bet  and  loses  it  he 
is  bound  to  pay  it,  and  can  be  compelled  by  an  action  at  law.  It  is 
as  much  the  subject  of  a  suit  as  any  other  debt,  and  it  will  not  do  on 
any  general  notions  of  discountenancing  wagers  to  say  that  a  man 
shall  not  recover  a  debt  which  another  lawfully  owes  him,  because  it 
had  its  origin  in  a  risk  which  the  parties  mutually  agreed  to  take  on 
a  certain  event.  Many,  if  not  most,  of  the  contracts  which  are  the 
subjects  of  suits  in  our  courts  are  either  directly  or  remotely  founded 
in  this  kind  of  risk  or  hazard.  Cases  of  insurance  are  cited  as  ex- 
amples; and  all  transactions  in  stocks  are  clearly  of  this  character. 
The  common  law  supports  such  wagers  as  are  not  against  public  pol- 
icy, or  morality;  which  do  not  tend  to  private  injury  or  exposure 
of  other  persons,  with  a  few  other  exceptions.  As  we  have  no  act 
of  assembly  altering  this  I  am  authorized  to  assume  that  it  is  also  the 
law  of  this  state.  If  the  court  are  of  opinion  that  the  law  will  not 
permit  such  a  bet  as  this  to  be  recovered,  I  have  nothing  to  say;  but 
until  such  is  declared  to  be  the  law,  I  shall  consider  this  bet  like  any 
other  contract,  as  imposing  a  legal  liability.  It  is  possible  that  pub- 
lic policy  might  make  it  necessary  to  restrain  the  betting  on  elec- 
tions; elections  known  to  the  law,  authorized  by  the  law  and  pro- 
tected by  the  law:  but  this  nomination  election  is  a  mere  party  ar- 
rangement for  bringing  out  the  candidates,  is  not  known  to  the  law 
and  cannot  be  -noticed  by  it.  Bribery  of  voters  at  an  election  author- 
ized by  law  is  a  crime  denounced  by  the  law;  and  as  betting  on 
such  elections  may  be  a  means  to  disguise  bribery  public  policy  may 
on  this  account  restrain  the  betting;  but  no  betting  on  the  result  of  a 
nomination  election  could  convey  a  bribe.  It  does  not  therefore  fall 
within  the  mischief  of  the  other  class  of  wagers.  As  to  the  other 
defence.  Sawyer  received  the  check  as  money;  did  not  object  to  it 
as  such;  it  was  convertible  into  money  at  any  time,  and  would  have 
been  cashed  had  he  not  failed  to  present  it  at  the  Bank  before  the 
result  of  the  bet  was  known.  He  is  now  precluded  from  setting  up 
this  objection  as  it  arises  from  his  own  negligence.  At  all  events  it 
was  his  duty  to  have  handed  over  the  check  to  the  plff.  on  his  de- 
manding the  money. 

The  Chief  Justice  charged  the  jury. —  That,  as  a  general  proposi- 
tion, it  was  lawful  to  bet.  Contracts  of  this  kind  may  be  entered  into 
and  the  obligations  arising  from  such  contracts  must  be  enforced  by 
courts  and  juries  if  they  be  not  such  as  to  effect  the  good  of  society, 
corrupt  public  morals  or  infringe  upon  the  private  rights  or  feelings 
of  third  persons.  Thus  a  bet  on  the  age  of  a  lady,  or  on  the  sex  of 
a  person  is  illegal,  according  to  adjudged  cases,  because  such  bets 
offend  the  delicacy  and  injure  the  feelings  of  third  persons.  And  a 
bet  on  the  issue  of  a  general  election,  whilst  pending,  would  undoubt- 
edly be  illegal,  as  being  against  public  policy,  and  hurtful  to  society. 
In  this  country  especially  the  purity  of  elections  is  a  matter  of  the 


Porter  vs.  Sawyer.  519 

first  consequence  to  the  due  administration  of  the  government,  and 
any  thing  which  tends  to  corrupt  these  ought  not  to  be  allowed.  Has 
such  a  bet  as  this  that  tendency?  The  nomination  election  referred 
to  is  understood  to  be  a  regular  poll,  opened  and  conducted  as  far  as 
practicable  in  the  same  manner  with  other  elections,  by  the  members 
of  one  of  the  great  political  parties,  to  determine  who  among  the  ap- 
plicants for  office  shall  be  fixed  on  as  the  candidates  of  the  party.  Its 
object  is  to  concentrate  the  votes  of  the  party  on  the  most  popular 
candidate,  and  the  obligations  of  party  are  universally  understood  to 
require  the  support  at  the  general  election  of  the  successful  candi- 
date at  the  nomination  election.  We  cannot  shut  our  eyes  to  the 
condition  of  our  own  afPairs,  nor  to  the  fact  that  the  person  brought 
out  at  the  nomination  election  by  the  party  in  the  majority  is  almost 
sure  to  be  the  elected  officer:  that  in  truth  as  to  the  filling  of  offices 
with  good  men  a  nomination  election  held  by  the  party  in  the  ma- 
jority is  of  quite  as  much  consequence  to  the  public  as  a  general  elec- 
tion. -Is  it  not  then  equally  important  to  preserve  the  purity  of  these 
elections?  If  they  are  corrupted  by  bribery  or  an  undue  influence 
raised  through  the  medium  of  betting,  have  not  such  bets  a  tendency 
to  impair  the  purity  of  elections?  If  they  have,  they  ought  not  to  be 
countenanced. 

The  entertaining  of  suits  for  such  bets  is  also  objectionable  from 
their  tendency  to  embarrass,  if  not  corrupt,  the  administration  of 
justice  by  introducing  into  the  jury  box  the  excited  feelings  of  politi- 
cal controversy  than  which  nothing  is  more  unfavorable  to  the 
calm  and  impartial  administration  of  justice..  (The  chief  justice  re- 
ferred to  the  case  of  YorJc  vs.  Ciibhage  in  the  late  court  of  common 
pleas,  in  which  for  a  pitiful  bet  of  a  few  dollars,  the  time  of  the  court 
was  occupied  through  two  closely  contested  trials,  and  the  halls  of 
justice  disgraced  by  the  disclosure  of  an  angry  political  quarrel  in 
the  jury  room.) 

On  another  ground,  also,  this  bet  seems  to  lis  to  be  objectionable, 
that  of  improperly  interfering  with  the  private  rights  and  the  feel- 
ings of  third  persons.  Upon  what  principle  had  the  parties  here  the 
right  to  bet  on  the  personal  popularity  of  Michael  Downey  or  of 
Joseph  Williams?  These  individuals  had  the  right  to  stand  before 
the  public  and  to  have  their  claims  to  office  tested  without  such  an 
interference  by  third  persons  as  must  necessarily  have  some  effect  on 
the  result.     Our  opinion  therefore  is,  that  this  bet  is  illegal. 

On  the  other  question  we  are  equally  of  opinion  that  the  plff.  is 
not  entitled  to  recover.  These  parties  deposited  in  the  hands  of 
Sawyer,  a  mutual  friend,  the  one  fifty  dollars  in  money,  the  other 
a  check  on  the  bank  for  fifty  dollars.  This  check  has  never  been 
converted  into  money  and  the  stakeholder  was  not  bound  to  convert 
it;  indeed  it  is  proved  that  he  could  not  convert  it,  for  when  it  was 
presented  for  that  purpose  payment  was  refused.  What  then  was  he 
bound  to  pay  on  the  decision  of  the  bet?  Certainly,  what  he  re- 
ceived. And  if  the  plff.  was  entitled  to  sue  Sawyer  for  his  deposit, 
the  check,  as  such,  could  not  be  recovered  in  this  form  of  action  for 
money  had  and  received  to  plff.'s  use,  but  in  an  action  of  trover  for 
the  property.  Verdict  for  defendant. 

J.  A.  Bayard,  for  plaintiff. 

Booth,  for  defendant. 


620  State  use  of  Thompson  vs.  McClay  et  al. 


THE  STATE  OF  DELAWARE  for  the  use  of  ALLAN  THOMP- 
SON vs.  JOSEPH  M'CLAY,  THOMAS  HAWKINS  and  ALEX- 
ANDER MOORE. 

If  a  tenant  abandons  property,  though  he  leaves  some  of  his  goods  on  the 
premises,  the  landlord  may  enter  and  take  proper  care  of  the  premises 
without  being  guilty  of  an  eviction. 

It  seems  the  incoming  tenant  has  a  right  to  fill  the  ice  house  before  his  term 
commences,  from  necessity  and  the  custom. 

Summons  debt  on  a  constable's  bond.  Narr.  Plea.  "  Performance." 
Replication  suggesting  breaches;  rejoinder;  surrejoinder  and  issues. 

The  replication  assigned  as  a  breach,  (under  the  act  of  assembly) 
that  the  said  Allan  Thompson  had  demised  certain  premises  to  one 
Hugh  H.  Reading;  that  a  half  year's  rent  ($312  50)  was  growing 
due  at  the  time  of  the  taking  of  Reading's  goods,  being  upon  said 
premises,  by  M'Clay  under  process  of  attachment  at  the  suit  of  one 
Ford,  issued  by  justice  M'Dowell  on  the  28th  September,  1833. 
That  Reading  confessed  judgment  in  said  suit  on  the  15th  October, 
1833,  and  a  fi.  fa.  was  issued  on  the  same  day,  under  which  M'Clay 
sold  the  goods  (still  being  on  the  premises)  for  $135  11,  which  he  has 
neglected  and  refused  to  pay  over  to  Thompson  in  part  payment  of 
the  rent  afsd. 

The  rejoinder  was  "  That  before  the  said  rent  became  due,  the 

said  Allan  Thompson,  to  wit:  on  the day  of entered  upon 

the  premises  so  leased  to  the  said  Hugh  H.  Reading  and  took  posses- 
sion of  the  same,  and  ejected,  expelled,  put  out  and  amoved  the  said 
Hugh  H.  Reading  from  the  possession  thereof,  and  kept  and  con- 
tinued him  the  said  Hugh  H.  Reading  so  ejected,  expelled,  put  out 
and  amoved  from  thence  hitherto,  to  wit,  &c. 

It  appeared  in  evidence  that  Reading  the  tenant  went  off  on  the 
night  of  the  24th  of  September,  taking  with  him  a  considerable  por- 
tion of  his  household  furniture,  but  leaving  property  on  the  premises 
to  the  value  of  $135  11.  He  was  accompanied  by  his  family  with 
the  exception  of  a  bar  keeper  who  said  that  he  was  not  authorized 
and  would  not  take  the  responsibility  of  keeping  the  house  open.  It 
was  a  large  tavern  establishment  in  the  city  of  Wilmington.  On  the 
26th  September  Thompson,  the  landlord,  levied  a  distress  on  the 
goods  remaining  upon  the  premises,  locked  up  the  house  and  took 
charge  of  the  key;  and  afterwards  let  the  house  to  another  tenant, 
his  term  to  commence  on  the  25th  of  ^larch,  when  Reading's  would 
expire.  The  succeeding  tenant  filled  the  ice  house  in  January,  and 
for  this  purpose  got  the  key  of  Thompson.  The  goods  were  sold 
on  a  judgment  recovered  by  Ford,  the  bar  keeper  of  Reading  on  a 
foreign  attachment,  sued  out  on  the  28th  of  September;  and  the  con- 
stable paid  the  monev  over  to  the  attaching  creditor,  without  satisfy- 
ing the  landlord's  clains  for  rent.  The  only  question  was  whether 
there  had  been  an  eviction  by  the  landlord,  and  a  consequent  dis- 
charge or  forfeiture  of  the  rent. 

Mr.  R.  H.  Bnyard.  contended  that  the  facts  amounted  to  an 
eviction ;  and  if  landlord  enter  upon  any  part  of  the  demised  prem- 
ises during  the  term  and  evict  the  tenant,  he  forfeits  the  accruing 


State  use  of  Thompson  vs.  McClay  et  al.  521 

rent  for  the  whole  premises.  And  he  cited  1  Sauiid.  2(»4,  /*.  2. 
Comyn.  on  Landlord  and  Tenant,  523,  No.  17,  Law  Library;  3  Camp. 
513;  1  Starbie  94;  2  Com.  Law  Rep.  310;  Comyyi.  21G. 

Mr.  J.  A.  Bayard,  contra  —  that  there  can  be  no  eviction  unless 
the  landlord  take  possession  to  the  exclusion  of  the  tenant.  The 
locking  up  of  an  abandoned  house  does  not  amount  to  an  eviction; 
and  the  landlord  has  the  right  under  such  circumstances  to  take  care 
of  his  property. 

By  the  Court  —  Clayton  Chief  Justice:  The  pleadings  admit 
that  the  plff.  has  a  right  to  recover  his  rent  unless  he  evicted  the 
tenant  Eeading  during  his  term.  An  eviction  is  any  entry  by  the 
landlord  upon  the  possession  of  his  tenant  with  a  design  to  injure  or 
prejudice  the  tenant's  right  of  possession.  The  premises  in  question 
were  rented  by  Heading  for  one  year  from  the  25th  of  ^larch,  1833. 
On  the  25th  of  September  he  absconded  in  the  night  time  and  left 
the  state,  taking  with  him  a  part  of  his  goods.  Tlie  goods  left  on 
the  premises  were  sold  by  the  deft.  M'Clay  on  execution  process. 
They  were  also  levied  upon  by  distress  at  the  suit  of  the  plff.  for 
rent;' and  it  is  not  denied  that  he  is  entitled  to  be  paid  out  of  the 
])roceeds  of  the  sales  unless  his  conduct  in  taking  possession  of  the 
premises  occasioned  a  forfeiture  of  the  rent.  If  a  tenant  absconds 
and  goes  out  of  the  government  and  abandons  the  property,  common 
sense  Avould  teach  that  the  landlord  had  the  right  to  take  ])r()])er  cure 
of  the  abandoned  premises  to  prevent  their  going  to  destruction. 
The  object,  therefore,  of  Mr.  Thompson  in  entering  u])on  these  prem- 
ises and  locking  up  the  house  should  govern  in  ascertaining  whether 
there  was  an  eviction.  If  he  entered  with  a  view  of  dis])o.ssessing 
the  tenant,  keeping  him  out,  or  prejudicing  his  rights  as  tenant; 
or  if  he  did  so  dispossess  him,  against  his  will;  it  would  be  an  evic- 
tion; but  if  all  the  acts  of  Thompson  amounted  only  to  reasonable 
care  of  his  property;  and  were  not  designed  and  had  not  the  effect  to 
dispossess  or  keep  out  Reading  against  his  will,  they  would  not  con- 
stitute an  eviction.  The  fact  of  again  leasing  the  property  is  no  evi- 
dence of  an  eviction,  for  the  term  was  not  to  commence  until  the  ex- 
piration of  Reading's  lease;  and  these  arrangements  for  a  new  ten- 
ancy must  always  be  made  before  the  expiration  of  the  old.  The 
entry  by  the  new  tenant  for  the  purpose  of  filling  the  ice  house  is  not 
proved  to  have  been  by  authority  of  the  landlord;  and  it  would,  per- 
haps, be  justified  by  the  custom  of  the  country.  Necessity  and  the 
custom  require  that  the  incoming  tenant  should  be  permitted  to  fill 
the  ice  house  before  his  term  commences  as  much  as  that  the  way- 
going tenant  shall  return  to  reap  his  wheat  crop. 

Verdict  for  plaintiff. 

.7.  A.  Bayard,  for  plaintiff. 

E.  II.  Bayard,  for  defendants. 

66 


522  Templemax  vs.  Biddle. 


HENRY  TEMBLEMAX  is.  WILLIAM  BIDDLE. 

A  particular  custom  must  be  pleaded:    a  general  custom  will  be  judicially 

noticed. 
The  way  froing  tenant  is  entitled  to  the  Avheat  crop  by  the  general  custom  of 

this  state. 
Not  so  of  the  oat  crop. 

Trespass  vi  et  armis.    Plea  not  guilty.    Issue. 

The  declaration  was  in  trespass  for  breaking  and  entering  plff.'s 
close,  and  preventing  him  from  threshing  out  and  carrying  away  a 
crop  of  oats  from  the  said  close,  the  property  of  the  plff.  and  a  part 
of  the  emblements  belonging  to  him  as  the  way-going  tenant  from 
the  said  close;  and  for  converting  the  said  crop  of  oats  to  his,  the 
deft.'s  own  use. 

There  were  other  counts  for  treading  down  the  wheat  crop,  &c. 
&c. 

It  appeared  that  Templeman,  in  the  year  1833,  and  for  many  years 
previous  occupied  a  farm  in  St.  George^s  hundred  as  tenant  of  Henry 
Bayard,  Esq.  In  that  year  Mr.  Bayard  disposed  of  the  farm,  and 
the  purchaser  gave  Templeman  notice  to  quit  on  the  25th  of  ^March, 
1834.  He  sowed  a  crop  of  oats  in  the  spring  of  1834,  which  Biddle, 
the  succeeding  tenant  permitted  him  to  cut,  but  refused  to  let  him 
carry  away;  and  afterwards  took  the  crop  of  oats  and  converted  it  to 
his  own  use.  For  this  trespass  and  also  for  injury  done  to  the  wheat 
crop,  the  action  was  brought. 

The  plff.  offered  to  prove  that  it  was  the  custom  of  the  neighbor- 
hood for  a  way-going  tenant  to  sow  a  crop  of  oats  and  reap  it  after 
him;  but  the  testimony  was  objected  to  and  excluded. 

Wm.  II.  Rogers.  At  common  law  the  tenant  is  not  entitled  to 
the  way-going  crop.  If  there  be  such  a  right  it  must  be  founded  on 
custom:  and  a  particular  custom  must  be  pleaded.  General  customs 
are  such  as  apply  to  the  whole  realm;  particular  customs  to  a  neigh- 
borhood or  district.  The  latter  must  be  averred;  and  cannot  be 
proved  or  judicially  noticed  without  being  pleaded.  Gould's  PI.  56 ;  1 
Chitty  PI.  221 ;  16  East,  71 ;  20  Com.  Law  Rep.  201 ;  1  Douglas,  201 ; 
2  Lord  Raymond,  1134,  5;  1  Blac.  Com.  7e;Doct.  &  Stud.  34;  5  Binn. 
Rep.  293. 

The  Court  said,  a  general  custom  may  be  proved  without  being 
pleaded;  or  perhaps  it  would  be  judicially  noticed  without  being 
either  proved  or  pleaded ;  but  a  custom  obtaining  only  in  a  particular 
district  or  neighborhood  must  be  pleaded.  As  an  example  of  the 
former  the  custom  is  believed  to  be  general  throughout  this  state  for 
the  way-going  tenant  to  sow  and  afterwards  to  reap  a  crop  of  wheat, 
there  can  be  no  such  general  custom  as  to  an  oat  crop;  for  the  time 
of  renting  generally  in  the  lower  counties  is  the  first  of  March,  and, 
in  some  parts  of  Kent,  the  first  of  January.  In  either  case  the  way- 
going tenant  could  not  sow  oats  and  there  can  be,  of  course,  no  cus- 
tom in  those  districts  which  authorizes  his  returning  to  reap  an  oat 
crop.  In  this  county  where  the  letting  is  generally  from  the  25th  of 
March  such  a  custom  may  exist;  but  if  relied  on  it  must  be  pleaded 
and  proved. 


Banner  vs.  Gregg.  523 

Question  to  a  witness.  What  has  been  the  course  of  tillage  of  this 
farm  for  17  years  past,  as  to  the  oat  crop?    Objected  to. 

By  the  Court.  We  have  stated  that  a  particular  custom  must  be 
pleaded.  The  plff.  therefore  in  this  case  can  entitle  himself  to 
the  oats  only  on  the  ground  of  contract.  Does  the  question  tend 
to  prove  such  a  contract?  The  usage  of  a  tenant  to  sow  oats 
each  year  and  reap  them  while  on  the  farm  can  have  no  relation  to 
his  rights  after  he  has  left  it;  or  tend  to  prove  any  contract  that  he 
shall  have  the  way-going  crop.  The  common  law  does  not  give  it  to 
him;  the  custom,  if  there  be  such,  is  not  pleaded,  and  the  evidence 
offered  is  not  admissible  to  show  a  contract.  It  is  therefore  ex- 
cluded. 

The  plff.  entered  a  nolle  prosequi  on  the  first  and  second  counts  of 
his  declaration  and  went  only  for  the  trespass  in  treading  down,  &c. 
the  wheat  crop,  for  which  he  had  a  verdict. 

Rodney,  for  plaintiff. 

Wm.  II.  Rogers  and  J.  Rogers,  for  defendant. 


WILLIAM  BANNER,   qui  tam.   vs.   BEESON   GREGG. 

The  obligor  in  a  bond  given  on  a  usurious  contract  is  a  competent  witness  to 
prove  the  usury,  in  an  action  qui  tam. 

Capias  debt;  narr;  plea  nil  debet;  issue. 

This  was  a  qui  tam  action  on  the  statute  of  usury.  (Digest,  314.) 
Johnson,  the  obligor  in  the  bond,  was  called  to  prove  the  usury; 
and  objected  to  on  the  ground  that  it  was  not  competent  for  him  to 
contradict  his  awn  deed  by  parol;  (2  Stark.  Ev.  995  to  1004;)  that 
parol  evidence  was  not  admissible  even  to  explain  a  written  instru- 
ment, unless  it  was  ambiguous  in  its  terms;  (3  Campb.  226;  2 
Saund.  PL  &  Ev.  696)  and  that  the  principle  would  be  extremely 
dangerous  to  admit  the  borrower  of  nioney  to  prove  a  different  con- 
tract from  that  expressed  on  the  face  of  his  bond,  and,  by  merely 
substituting  some  friend  as  a  common  informer,  to  make  his  creditor 
forfeit  the  money  due  upon  the  bond. 

Bayard,  contra,  admitted  the  general  positions  of  ^Ir.  Hamilton 
to  be  sound,  but  insisted  that  fraud  and  usury  were  exceptions.  3 
Starlc.  Ev.  1016;  Comyn.  on  Usury,  226,  (86);  2  Saund.  Plead.  & 
Ev.  498;  2  Bos.  &  Put.  116. 

The  Court  admitted  the  evidence.  Where  fraud  is  imputed,  any 
consideration,  however  contrary  to  the  deed,  may  be  proved  by 
parol:  and  to  exclude  the  borrower  would  be  to  repeal  the  statute 
against  usury.  Roscoe  Ev.  10;  9  East,  421;  Comyn.  on  Usury,  224. 
224. 

The  plaintiff  had  a  verdict. 

R.  H.  Bayard,  for  plaintiff. 

Uamilton,  for  defendant. 


524  Lessee  of  Ferguson  et  al.  vs.  Hedges. 


DOE  ex  dem.  JOHX  FERGUSON  et  al.  vs.  KOE  and  Eev.  CHAP- 
LAIN S.  HEDGES,  tent. 

The  lessee  of  JOHN  M'KNIGHT  et  al.  vs.  The  same  Defendants. 

A  devise  of  real  estate  to  a  church  is  void. 

A  lapsed  bequest  of  real  property  goes  to  the  heir  at  law;  a  void  one  to  the 
residuary  devisee. 

Ejectments, 

These  ejectments  were  presented  to  the  court  on  the  following 
case  stated: 

Mary  James  heing  seized  in  fee  of  the  premises  in  question  by  her 
last  will  arid  testament,  dated  the  thirtieth  day  of  July,  A.  El.  one 
tliousand  eight  hundred  and  thirty-one,  devised  as  follows : 

I  Mary  James  of  the  borough  of  Wilmington  in  the  county  of  New- 
castle and  state  of  Delaware,  being  considerably  advanced  in  years 
and  very  infirm  in  body,  but  of  a  sound  and  disposing  mind  and  mem- 
ory, blessed  be  Almighty  God  for  all  his  mercies,  do  make  and  publish 
this  my  last  will  and  testament  in  manner  and  form  following,  that 
is  to  say:  Imprimis.  It  is  my  mind  and  will  that  all  of  my  just 
debts  and  funeral  expenses  shall  be  paid  by  my  executors  hereinafter 
named,  out  of  my  personal  estate,  as  soon  as  convenient  after  my  de- 
cease, and  I  do  hereby  order  and  direct  my  executors  to  have  my  body 
deposited  in  Trinity  Church  burying  ground  in  the  borough  of  Wil- 
mington afsd.  and  to  cause  a  plain  marble  tomb  erected  over  my 
grave.  Item.  I  give  and  bequeath  to  my  niece  Rebecca  Biddle  all 
the  interest  or  dividends  which  shall  become  due  and  payable  from 
time  to  time  from  the  day  of  my  decease,  on  six  shares  of  stock  stand- 
ing in  my  name  on  the  l)ooks  of  the  Bank  of  Delaware,  to  take,  re- 
ceive and  enjoy  the  said  interest  or  dividends  during  the  term  of  her 
natural  life,  and  at  her  decease  I  give  and  bequeath  the  said  six  shares 
of  stock  to  Saint  Andrew's  Church  in  the  said  borough. 

Item.  I  give,  bequeath  and  devise  also  to  Saint  Andrew's  Church 
in  the  said  borough,  all  my  lot  of  land  situate  in  the  said  borough 
bounded  (&c.  describing  it)  togetlier  with  a  three  story  brick  house 
thereon  erected,  with'  the  appurtenances :  to  have  and  to  hold  the 
use  of  the  said  house  and  lot  to  the  said  church  forever,  but  not  to  be 
sold  on  any  account  whatever. 

Item.  I  give  and  bequeath  to  the  said  St.  Andrew's  Church  the 
sum  of  one  thousand  dollars,  loaned  to  the  corporation  of  Wilming- 
ton at  five  per  cent,  as  per  certificates,  principal  and  interest,  from 
the  day  of  my  decease,  to  be  paid  to  the  church  wardens  and  vestry 
of  the  said  church,  for  the  use  and  benefit  of  the  said  church.  Item. 
I  give  and  bequeath  to  Hannah  Ball,  my  silver  cream  urn.  Item.  I 
give  and  bequeath  to  Mary  Ball,  daughter  of  James  Ball,  deceased, 
my  silver  tea  pot  and  silver  sugar  dish.  Item.  I  give  andlbequeath 
to  Isabella  Ball  one  silver  soup  ladle  and  six  silver  tea  spoons  marked 
F.  Item.  I  give  and  bequeath  to  Mary  Few  the  daughter  of  my 
cousin  William  Few,  my  silver  coffee  pot.  Item.  I  give  and  be- 
queath to  Trinity  Church,  in  the  said  borough,  four  shares  of  stock 


Lessee  of  Ferguson  et  al.  vs.  Hedges.  525 

standing  in  my  name  on  the  books  of  the  Wilmington  and  Kennet 
Turnpike  Company,  to  be  paid  to  the  church  wardens  and  vestry 
men  of  the  said  church,  for  the  purpose  of  building  a  stone  wall 
round  a  part  of  the  church  yard  as  far  as  it  will  go,  and  for  no  other 
use  whatever.  Item.  I  give  and  bequeath  to  my  nephews  Eichard 
Silence  and  his  brothers  and  one  sister  all  my  sixteen  shares  of  stock 
in  the  Wilmington  Bridge  Compan}^,  to  be  divided  between  them, 
share  and  share  alike. 

Item.  I  give,  bequeath  and  devise  to  William  Ball  and  Mary  Ball 
children  of  the  said  James  Ball,  deceased,  and  to  John  M'Knight,  all 
the  residue  of  my  estate  real  and  personal  of  whatever  kind  it  may 
be,  after  payment  of  the  legacies  before  mentioned,  debts  and  funeral 
expenses,  as  afsd.  to  be  paid  to  them  the  said  William  Ball,  Mary 
Ball  and  John  M'Knight  or  to  the  survivors  of  them,  share  and  share 
alike,  within  one  year  after  my  decease. 

And  lastly,  I  do  hereby  nominate,  constitute  and  appoint  my 
friends  William  Seal  and  John  Bullock,  both  of  the  said  borough,  ex- 
ecutors of  this  my  last  will  and  testament,  hereby  revoking,  &c.  and 
declaring,  &c.,  dated  30  July,  1831. 

The  questions  submitted  were,  first;  whether  the  devise  of  the 
premises  in  question  to  Saint  Andrew's  Church  was  void.  Second; 
whether  the  said  premises  belonged  to  the  heirs  at  law  of  the  devisor 
or  whether  they  passed  under  the  said  will  to  the  residuary  devisees. 
If  the  court  should  be  of  opinion  that  the  devise  of  the  said  premises 
to  Saint  Andrew's  Church  was  not  void,  then  judgment  to  be  entered 
for  the  deft,  in  both  actions.  If  the  court  should  be  of  opinion  that 
the  said  devise  was  void  and  that  the  said  premises  belonged  to  the 
heirs  at  law  of  the  devisor,  then  judgment  to  be  entered  for  the  plff. 
in  the  case  of  Ferguson^s  lessee  and  others,  and  a  nonsuit  in  the  case 
of  M'Knight's  lessee  and  others.  If  the  court  should  be  of  opinion 
that  the  said  devise  was  void  and  that  the  said  premises  passed  under 
the  said  will  to  the  residuary  devisees  therein  mentioned,  then  judg- 
ment to  be  entered  for  the  plff.  in  the  case  of  M'Knight's  lessee  and 
others,  and  a  nonsuit  in  the  case  of  Ferguson's  lessee  and  others. 

It  was  further  agreed  by  the  counsel  in  M'Knight's  case  that  the 
residuary  devise  in  said  will  should  be  considered  as  having  taken 
effect  immediately  upon  the  death  of  the  devisor;  and  that  the  lessor 
of  the  plff.  in  said  case  should  in  any  event  pay  the  costs  of  suit. 

MacBeth,  for  the  heirs  at  law.  The  first  question  depends  on 
the  act  of  assembly,  (Digest,  459,  sec.  3)  which  declares  void  all 
gifts,  grants,  bargains,  sales  and  conveyances  of  lands  or  money  to 
be  laid  out  in  land,  made  to  any  religious  society,  unless  such  gifts, 
grants,  &c.  be  made  by  deed  indented,  twelve  months  at  least  before 
the  death  of  the  donor,  &c.  and  without  any  power  of  revocation. 
The  devise  in  this  will  'to  Saint  Andrew's  Church,  is  a  plain  and  di- 
rect violation  of  the  act,  and  is  consequently  null  and  void.  The  im- 
portant question  therefore  is  between  the  heirs  at  law  and  the  residu- 
ary devisees  in  relation  to  this  property,  which  the  law  will  not 
permit  to  go  in  the  manner  intended  by  the  testatrix.  If  this  ques- 
tion is  to  be  decided  by  the  intention  of  the  testatrix  (and  this  is 
said  to  be  the  rule  by  which  wills  ought  to  be  expounded)  it  is  per- 
fectly clear  that  Mrs.  James  did  not  intend  this  property  to  go  to  the 


526  Lessee  of  Fekouson  et  al.  vs.  Hedges. 

residuary  devisees,  and  did  not  suppose  it  to  be  embraced  in  the  gen- 
eral residuary  clause.  She  supposed  she  was  giving  it  to  the  church 
and  that  she  had  the  right  so  to  give  it.  But  it  may  be  answered, 
no  more  did  she  intend  it  to  go  to  her  heirs  at  law,  having  mani- 
fested a  different  intention  by  attempting  to  dispose  of  it  otherwise. 
Granted;  but  still  the  heir  at  law  shall  be  preferred;  he  shall  never 
be  disinherited  but  by  express  words  or  necessary  implication. 
Prec.  in  Chy.  473;  Cowp.  99;  Cruise  Dig.  The  distinction  is 
well  established  between  a  lapsed  legacy  and  a  lapsed  devise  of  real 
estate;  the  former  passes  into  the  residuum  because  the  will  passes 
all  the  personal  property  which  the  testator  may  have  at  the  time  of 
his  death,  but  as  to  the  real  property  it  regards  only  such  as  he  may 
have  at  the  date  of  the  will.  A  lapsed  devise  therefore  is  regarded 
as  not  having  been  disposed  of  by  the  will  and  goes  to  the  heir  at 
law.    4  Kent.  Com.  541;  8  Vezey,  jr.  24;  6  Cruise  Dig.  169. 

A  further  distinction  has  been  attempted  and  is  loosely  recognized 
by  respectable  authority,  between  a  lapsed  and  a  void  devise.  4 
Kent.  Com.  542;  Doe  vs.  Shefjield,  13  East,  526;  but  is  not  well 
supported  by  the  English  authorities;  has  not  been  followed  by 
American  cases;  and  is  unintelligible  in  principle.  As  referred  to 
the  intention  of  the  testator,  it  cannot  be  supported.  There  is  no 
such  distinction  between  lapsed  and  void  legacies.  (5  Mass.  Rep. 
500;  2  Vernon,  394)  and  there  exists  no  reason  for  it  in  the  case  of 
real  estate.  It  is  a  distinction  without  a  difference.  And  the  case  of 
Green  et  al.  vs.  Dennis,  6  Conn.  Bep.  292,  adjudges  the  land  to 
the  heir  though  the  devise  was  void  from  the  beginning.  Hormer 
Chief  Justice  said  "The  devise  being  void,  it  is  to  be  considered 
whether  the  land  descended  to  the  heirs  at  law  of  the  devisor  or 
were  transferred  to  the  residuary  devisee."  In  relation  to  real  estate 
it  is  an  established  principle,  that,  in  case  of  a  lapsed  devise,  the 
estate  does  not  vest  in  the  residuary  devisee  but  descends  to  the  heir 
at  law  of  the  testator.  Wills  must  be  construed  by  the  intent  of  the 
devisor  at  the  time  of  making  them;  of  consequence,  when  property 
is  given  to  a  person  incapable  of  taking  and  there  is  a  general  de- 
vise of  the  residue,  so  far  as  respects  the  estate  specifically  devised 
at  the  time  of  the  will  being  made,  there  is  an  intentional  disposi- 
tion, and  it  never  was  designed  that  it  should  fall  into  the  residuum. 
The  law  respecting  the  bequest  of  personal  estate  is  different;  but  as 
to  the  realty,  the  decisions  have  been  uniform  and  unquestioned. 
Fortesq.  182;  ^Yilles'  Rep.  293,  7;  Amh.  338,  9  580,  643,  5;  3  P. 
Wms.  20. 

Booth  and  J.  A.  Bayard  declined  arguing  the  case  on  the  part  of 
the  church. 

Gray,  for  the  residuary  devisees.  The  counsel  for  the  church 
having  abandoned  the  cause  so  far  as  they  are  concerned,  I  shall  not 
consider  it  necessary  to  examine  the  first  question,  whether  this  de- 
vise is  void.  On  the  other  question,  the  distinction  is  well  estab- 
lished between  lapsed  and  void  devises;  and  whether  proceeding 
on  broad  or  narrow  grounds  it  is  fully  taken.  But  the  reason  of  it 
is  sufficiently  apparent.  In  the  construction  of  wills  we  are  always 
to  refer  ourselves  to  the  condition  of  things  at  the  time  of  making 


Lessee  of  Ferguson  et  al.  vs.  Hedges.  527 

the  will  and  not  after.  (Willes  Rep.  297.;  "Where  the  testator 
has  given  away  all  his  estate  and  interest  in  certain  lands,  so  that  if 
he  were  to  die  immediately,  nothing  would  remain  undisposed  of, 
he  could  not  intend  to  give  any  thing  in  those  lands  to  his  residuary 
devisee."  The  reverse  of  this  proposition  must  also  be  true  that 
where  the  testator  has  not  disposed  of  certain  property  by  a  specific 
bequest  it  falls  within  the  general  residuary  bequest  of  "  all  the  resi- 
due of  her  estate  real  and  personal;"  and  this  constitutes  the  plain 
difference  between  a  lapsed  and  a  void  devise;  in  the  former  the  de- 
vise is  good  at  the  date  of  the  will;  the  subject  of  it  is  actually  dis- 
posed of  by  the  will  and  cannot  sink  into  the  residue;  the  latter  is 
void  from  the  beginning;  passes  not  by  the  specific  devise,  but  is  in- 
cluded from  the  moment  in  the  residuary  clause.  All  the  cases  cited 
on  the  other  side  are  cases  either  of  lapsed  or  of  conditional  devises. 
Vezey,  jr.  is  a  lapsed  devise;  P.  Wms.  and  Amhler  contingent, 
and  so  of  the  rest.  The  only  exception  is  the  case  from  Connecticut 
Keports,  where  the  residuary  clause  seems  from  a  remark  in  Kent's 
commentaries  (4  Kent.  Com.  542)  to  have  been  considered  as  not 
sufficiently  comprehensive;  but  which,  if  considered  as  a  case  in 
point,  is  against  all  the  authorities.  13  East,  52G;  3  Maule  &  Selwyn. 
300. 

Read,  Jr.,  on  the  same  side.  Looking  at  the  train  of  authorities, 
Avhat  has  been  the  rule  of  decision  in  cases  similar  to  the  present  in 
the  courts  of  that  country  from  which  we  derive  our  common  law? 
Have  those  decisions  been  varied  or  altered  by  the  cases  in  our  own 
courts;  or  is  there  any  thing  in  our  condition  or  policy  which  should 
vary  our  views  of  this  question  from  those  which  the  most  learned 
judges  have  taken  of  it?  It  is  not  enough  to  say  that  the  rule  is 
based  on  a  refined  and  unintelligible  distinction;  by  this  argument 
many  of  the  best  established  maxims  of  the  law  might  be  shaken; 
the  rule  in  Shelley's  case  for  example.  It  is  enough  for  us  to  say  ita 
lex  scripta  est,  and  to  enforce  the  rule  of  stare  decisis  by  that  sensible 
observation  of  a  learned  judge,  that  "  it  is  perhaps  of  less  importance 
how  the  law  is  determined,  than  that  it  should  be  determined  and 
certain."  (Per  Ashhurst,  J.  7  Durnfd.  &  East  419 ;  Ram  on 
Judgment,  5.  The  first  object  in  construing  a  will,  is  to  discover 
if  possible  the  intention  of  the  testator.  What  was  it  in  this  case? 
She  evidently  designed  to  part  with  all  her  property  by  will  and  not 
to  die  intestate  as  to  any  portion  of  it.  She  intended  that  her  heirs 
at  law  should  become  entitled  to  her  property  only  under  her  will. 
She  commences  with  a  direction  about  her  funeral  expenses,  &c.  par- 
cels out  her  property  to  the  objects  of  her  bounty  according  to  her 
pleasure,  and  concludes  by  a  general  bequest  to  William  Ball,  Mary 
Ball  and  John  McKnight,  of  "  all  the  residue  of  her  estate  real  and 
personal."  Is  it  not  apparent  that  at  the  time  of  making  this  will 
Mrs.  James  did  not  intend  that  her  heirs  at  law  should  have  any 
more  or  other  part  of  her  estate  than  she  had  specifically  devised  to 
them?  With  regard  to  the  particular  estate  in  controversy  doubtless 
she  intended  the  church  should  have  it.  That  was  the  fir^t  object  of 
her  bounty  ?  Who  next  ?  We  are  not  left  without  an  alternative ;  the 
will  shows  who ;  the  residuary  devisees  were  designed  to  have  all  her 
estate  both  real  and  personal  which  she  had  not  disposed  of  to  others. 


628  Lessee  of  Ferguson  et  al.  vs.  Hedges. 

The  present  property  is  precisely  in  that  condition;  and  it  affords  an 
iihistration  of  the  distinction  between  lapsed  and  void  devises  which 
has  been  })ronoimced  unintelligible. 

Wales,  in  reply,  for  the  heirs  at  law.  Beyond  a  doubt  the  inten- 
tion of  Mrs.  James  was  to  give  this  estate  to  Saint  Andrew's  Church. 
It  is  equally  clear  that  she  supposed  she  had  effected  this  intention. 
How  then  can  it  be  argued  that  there  is  an  intention  to  be  collected 
from  the  will  itself,  of  giving  this  same  property  to  other  persons. 
Because  she  gives  all  the  "  residue "'  of  her  estate  to  Ball  and  others, 
it  is  argued  that  she  intended  to  include  in  this  residue  that  which 
was  not  residue,  but  which  she  had  previously  disposed  of  in  another 
manner.  It  is  impossible  to  sustain  a  decision  giving  this  estate  to 
the  residuary  devisees  on  the  ground  of  the  intention  of  the  testatrix. 
Can  it  be  sustained  on  the  authority  of  adjudged  cases?  The  other 
side  is  confident  that  it  may,  but  it  is  remarkable  that  they  have  not 
produced  a  single  adjudged  case  sustaining  their  principle  to  its  ex- 
tent. In  Stewart's  lessee  vs.  Sheffield,  (13  East  52G;)  the  land 
was  adjudged  to  the  particular  devisee;  it  was  not  the  case  of  a  void 
devise;  and  though  the  judges  speculate  on  what  would  have  been  the 
consequence  if  it  had  been,  the  point  was  not  considered  or  decided. 
Neither  does  Doe  ex  dem.  Wells  vs.  Scotts  et  al.  3  Maule  &  Selw. 
decide  the  question.  And  the  elementary  writers  lay  it  down  loose- 
ly; some  of  them  with  hesitation.  (4  Kent.  Com.  542.)  In  the 
absence  of  any  proof  of  intention  on  the  part  of  the  testatrix,  the  only 
safe  rule  is  that  of  the  common  law,  that  the  heirs  shall  not  be  disin- 
herited but  by  express  words  or  necessary  implication.  Prec.  in  Ch'y. 
473. 

Cur.  adv.  vult. 

Chief  Justice  Clayton  delivered  the  opinion  of  the  court. 

Clayton,  Chief  Justice.  "  Mary  James  being  seized  in  fee  of  the 
premises  in  question  by  her  will  duly  executed,  dated  30th  July,  1831, 
gave  and  devised  to  "  Saint  Andrew's  Church  in  Wilmington,  all  a 
certain  lot  of  land  therein  described,  to  have  and  to  hold  the  use  of 
the  said  house  and  lot  to  the  said  church  forever;  but  not  to  be  sold 
on  any  account  whatever."  And  after  bequeathing  sundry  legacies, 
there  is  this  clause  in  her  will: — "litem,  I  give,  bequeath  and  devise 
to  William  Ball  and  Mary  Ball,  children  of  James  Ball,  deceased;  and 
to  John  McKnight  all  the  residue  of  my  estate  real  and  personal  of 
whatever  kind  it  may  be."  The  lessors  of  the  plff.  are  the  residuary 
devisees. 

It  is  not  contended  in  this  case  that  the  devise  to  Saint  Andrew's 
Church,  passes  any  estate  in  the  premises  in  question  to  the  church; 
but  it  is  admitted  that  the  devise  is  void  by  the  laws  of  this  state. 
That  question  was  decided  at  the  last  May  Term  in  Kent,  in  the  State 
use  of  Wilthank  et  al.  vs.  Bates.  The  question  here  is,  who  take? 
the  heirs  at  law  of  Mrs.  James,  or  her  residuary  devisees? 

Since  the  case  of  Doe  on  the  demise  of  Morris  vs.  Underdown, 
Willes  293,  that  question  seems  to  be  completely  settled  in  England. 
In  that  case  the  distinction,  as  far  as  we  can  ascertain,  was  first  estab- 
lished between  a  lapsed  devise,  and  a  void  devise.  The-  principles 
laid  down  by  the  chief  justice  in  that  case  were  these :  that  the  intent 
of  the  testator  ought  always  to  be  taken  as  things  stood  at  the  mak- 


McClay  vs.  Houston's  adm'r.  529 

ing  of  his  will,  and  is  not  to  be  collected  from  subsequent  accidents 
which  the  testator  could  not  then  foresee ;  and  that  when  a  testator  in 
his  will  has  given  away  all  his  estate  and  interest  in  certain  lands,  so 
that  if  he  were  to  die  immediately  nothing  remains  undisposed  of,  he 
cannot  intend  to  give  any  thing  in  these  lands  to  the  residuary  devi- 
see. This  latter  rule  would  govern  all  cases  of  lapsed  devises;  for 
if  the  testator  were  to  die  immediately  upon  the  making  of  the  will 
there  would  be  nothing  undisposed  of,  and  the  devisee  would  take; 
but  if  the  devisee  were  to  die  between  the  making  of  the  will,  and 
the  death  of  the  testator,  the  devise  would  lapse  and  the  heir  at  law 
would  necessarily  take  in  preference  to  the  residuary  devisee,  for  it 
was  not  undisposed  of  a^  the  making  of  the  will,  but  the  devise  was 
rendered  inoperative  by  a  subsequent  accident  —  the  death  of  the  de- 
visee. This  is  not  so  in  the  case  of  a  void  devise;  for  there  at  the 
making  of  the  will  nothing  passes,  nothing  is  disposed  of,  and  the 
residuary  devisee  under  the  clause  "all  the  residue  of  my  estate" 
takes,  and  not  the  heir  at  law.  In  Doe  lessee  of  Stewart  vs.  Shef- 
fieldj  13  East  526,  this  is  considered  as  the  settled  law;  and  in  Doe 
on  the  demise  of  Wells  and  others  vs.  Scott  and  another  3  Maitle 
and  Sel.  300,  Lord  Ellenborough  in  delivering  the  judgment  of  the 
court  recognizes  the  authority  of  the  two  preceding  cases  as  "admit- 
ted law''  on  the  subject. 

We  are  not  unaware  of  the  x\merican  decisions  on  this  subject  in  6 
Conn.  Rep.  292  and  in  Lingan  vs.  Carroll,  3  Harr.  and  McHen. 
333;  but  we  prefer  following  the  authorities  which  we  have  cited. 
The  heirs  at  law  do  not  appear  to  have  been  objects  of  the  testator'i^ 
bounty;  they  are  no  where  mentioned  in  her  will.  This  circum- 
stance is  not  relied  on  in  forming  our  judgment,  but  merely  to  show 
that  the  testatrix  did  not  desire  that  her  heirs  at  law  should  derive 
any  benefit  from  her  estate.  Our  decision  is  founded  upon  the  au- 
thorities which  we  have  cited,  and  upon  the  principles  established  by 
them.  Our  opinion  is  therefore  for  the  residuary  devisees,  and  judg- 
ment is  accordingly  given  for  the  plffs.  in  the  case  of  the  lessee  of 
McKnight  and  others  vs.  Hedges;  and  in  the  other  case,  lessee  of  J. 
Ferguson  and  others  the  heirs  at  law  of  INIary  James  against  the  same 
deft,  that  judgment  be  given  for  the  deft." 

Macbeth  and  Wales,  for  the  heirs  at  law. 

Cray  and  Read,  Jr.  for  the  residuary  devisees. 

Booth  and  J.  A.  Bayard,  for  the  church. 


JOSEPH  McCLAY  vs.  JANE  HOUSTON'S  adm'r. 

If  an  attachment  clause  be  added  to  a  ft.  fa.  on  justice's  judgment,  the  gar- 
nishees must  be  summoned  to  appear  at  the  return  of  the  execution. 

Certioeaei  to  justice  McCaulley. 

The  only  exception  relied  on  in  this  case  was  to  the  execution 
which,  was  made  returnable  on  the  21st  of  March,  1835,  and  con- 
tained a  clause  for  summoning  the  garnishees  of  the  defendant  to  ap- 
pear before  the  justice  and  answer  on  the  21st  of  February. 

67 


530  KizER  V8.  Downey. 

The  act  of  assembly  (sec.  30)  makes  the  time  for  the  appearance  of 
the  garnishees  the  same  with  the  return  day  of  the  execution. 

Execution  set  aside. 
Gilpin,  for  McClay. 
Hamilton,  for  Houston's  adm'r. 


JARED  HAWTHORN  vs.  ANDREW  McGUIRE. 

Justices  of  the  peace  have  jurisdiction  onlj'  of  such  cases  of  trespass  as  are 
for  a  direct  and  immediate  injury  to  property. 

Certiorari  to  Justice  Tatlow. 

This  was  an  action  of  "trespass"  brought  by  McGuire  against 
Hawthorn  before  Justice  Tatlow  "  for  borrowing  a  dearborn  and  har- 
ness from  the  said  McGuire,  and  suffering  from  the  running  away  of 
a.  horse,  the  shafts,  hounds,  harness  and  back  curtain  to  be  torn  off 
and  broken,  and  not  having  the  same  put  in  complete  repair;  for  neg- 
lecting and  finally  refusing  to  return  or  bring  home  the  said  dear- 
born and  harness,  but  leaving  the  same  at  the  wheelwright's  shop,  to 
its  destruction  and  damage,  and  the  immediate  injury  of  the  said 
Andrew  McGuire. 

The  damage  was  laid  at  $40;  and  on  a  trial  by  referees  there  was 
a  report  and  judgment  for  $35  and  costs. 

The  exception  was  to  the  jurisdiction  of  the  Justice,  and  the  court 
reversed  the  judgment  on  that  exception. 


Rodney,  for  Hawthorn. 
Read,  Jr.  for  McGuire. 


Judgment  reversed. 


DAVID    KIZER    (defendant    below)    vs.    MICHAEL    DOWNEY 

(plaintiff  below.) 

On  a  certiorari  the  Justice  is  not  bound  to  send  up  matters  of  evidence. 
Jf  a  freeholder  be  arrested  on  a  capias  he  must  object  to  it  before  going  into 
a  trial,  or  it  will  not  vitiate  the  judgment. 

Certiorari  to  Justice  Leonard. 

Record.  Downey  vs.  Kizer.  "Action  of  debt  on  account.  Debt, 
$47  55.  1835,  March  5th,  capias  issued.  Same  day  deft,  brought 
forward:  plff.  present;  after  a  hearing,  judgment  for  plff.  for  the 
above  sum  of  $47  55.  Michael  Downey  on  his  solemn  oath  says  that 
he  has  good  grounds  to  apprehend  and  does  verily  believe  that  if  the 
stay  of  execution  for  six  months  be  allowed,  the  sum  due  by  the  judg- 
ment will  be  lost,  (signed)  Michael  Downey."  Whereupon  an  exe- 
"cution  issued. 

Hamilton,  for  deft,  below  alledged  diminution  and  assigned  for 
cause  "  that  the  magistrate  had  not  returned  with  the  proceedings  in 
the  above  cause  the  special  cause  of  action  (or  a  copy  of  the  same)  as 
commanded  bv  the  writ  of  certiorari  issued  in  the  above  cause." 


KizER  VS.  Downey.  531 

The  Court  overruled  this  allegation  of  diminution.  The  cause  of 
action  as  stated  by  the  record  was  an  account;  and  the  Justice  is  not 
bound  to  send  up  the  evidence  by  which  it  was  sustained. 

He  then  excepted  to  the  original  process  because  it  aj^peared  by 
the  record  that  the  deft,  was  a  freeholder  of  the  county.  The  act 
of  assembly  requires  that  a  process  against  a  freeholder  shall  be  a 
summons  and  not  a  capias,     (sec.  2.) 

The  Court  overruled  this  exception  and  affirmed  the  judgment. 
The  deft,  submitted  to  go  into  a  trial  without  objecting  to  the  pro- 
cess on  which  he  was  arrested;  and  the  irregularity  in  the  form  of 
the  process  does  not  affect  the  jurisdiction.  Freehold  is  a  privilege 
that  the  party  ought  to  avail  himself  of  at  a  proper  time:  it  would 
become  the  means  of  great  injustice  if  it  could  be  waived  at  one  time 
and  afterwards  set  up  to  avoid  the  judgment. 

Judgment  affirmed. 

J.  A.  Bayard,  for  plaintiff. 

Hamilton,  for  defendant. 


COURT  OF  ERRORS  AND  APPEALS. 

JUI^'E  TEEM, 

1835. 


BARKLEY  TO^YNSEND,  app't,  deft,  below  vs.  EGBERT  HOUS- 
TON,  appellee,  comp't.  below. 

Payment  of  a  substantial  part  of  the  purchase  money  is  such  a  part  per- 
formance of  a  parol  agreement  for  the  sale  of  land  as  will  take  the  case 
out  of  the  statute  of  frauds  and  a  court  of  equity  will  decree  a  specific 
execution  of  the  agreement. 

The  payment  must  be  clearly  made  and  accepted  in  execution  of  the  agreement. 

Appeal  from  chancery.    Sussex. 

This  was  a  suit  for  the  specific  performance  of  a  parol  agreement 
to  sell  land. 

The  complainant  in  his  bill  stated,  that  Thomas  Townsend,  deft.'s 
father,  having  died  intestate,  his  lands  were  appraised  in  the  orphans' 
court,  and  stood  for  acceptance.  That  in  February,  1832,  it  was 
agreed  between  him  and  complainant,  that  complainant  should  join 
him,  the  said  Barkley  Townsend,  in  the  acceptance  of  said  lands, 
and  that  the  said  Barkley  would  sell  and  convey  to  complainant  one 
half  of  the  same  for  $3750,  to  be  paid  as  follows:  complainant  was  to 
deliver  and  sell  to  deft,  one  half  of  the  schooner  Tanner  and  one  half 
of  a  scow,  for  $625,  and  to  pay  one  half  of  a  debt  due  from  the  es- 
tate of  the  said  Thomas  Townsend  to  the  Farmers'  Bank,  amount- 
ing to  $2155,  and  to  pay  deft,  in  cash,  on  the  execution  of  the  deed 
for  the  one  half  of  said  land,  the  sum  of  $1547  50.  The  complain- 
ant alledged  performance  of  this  agreement  in  part,  and  tender  as  to 
the  residue.  That  he  had  paid  Townsend  $800  and  $600,  and  took 
from  him  certain  receipts  which  were  signed  by  Townsend  as  vouch- 
ers or  memoranda  in  writing  of  the  agreement;  that  complainant  has 
also  sold  and  delivered  to  deft,  one  half  of  the  said  schooner  and 
scow;  being  the  sum  of  $2525,  paid  in  part  performance  of  said 
agreement;  and  that  he  has  tendered  the  residue  of  the  purchase 
money.     He  therefore  prays  a  specific  execution,  &c. 

The  deft,  pleaded  as  to  part,  the  "  act  about  contracts  and  assump- 
tions," and  answered  as  to  the  residue  that  he  the  deft,  having  ac- 
cepted the  lands  afsd.  the  complainant  applied  to  him  and  offered  to 
purchase  an  interest  in  the  same,  and  stating  that  he  would  give  a 
fair  price;  but  that  no  sale  or  agreement  was  ever  made.  That  Avhile 
they  were  in  treaty  he  did  agree  to  take  a  part  of  the  vessel  and  scow 
provided  they  should  finally  bargain,  and  did  receive  the  said  two 
sums  of  $800  and  $600,  but  the  same  were  not  paid  in  part  perform- 


TowNSEND  VS.  Houston.  533 

mice  of  any  agreement  for  the  sale  of  said  lands,  for  no  such  agree- 
ment was  ever  made,  as  the  parties  could  never  agree  as  to  the  terms 
of  the  sale  or  the  amount  of  the  interest  which  the  said  complainant 
was  to  take  in  said  lands.  Deft,  admitted  the  endorsement  of  a  note 
by  complainant  to  the  Parmers'  Bank  for  $2155,  but  the  said  note 
was  paid  off  by  the  drawer  and  the  endorser  discharged.  He  denied 
the  receipt  of  said  vessel  and  scow;  the  execution  of  any  paper,  or  the 
performance  of  any  act,  in  part  execution  of  any  agreement  for  the 
sale  of  said  lands,  totally  denying  the  making  of  such  agreement. 

The  receipts  referred  to  in  the  bill  and  answer,  were  in  the  follow- 
ing words: 

"^Keceived  March  10,  1832,  of  Eobert  Houston,  eight  hundred  dol- 
lars, which  is  in  part  pay  of  the  half  of  the  mill  property,  &c.  in  Mid- 
dleford,  which  1  promise  to  deed  when  called  on. 

(Signed)  "  Barkley  Toavnsexd.'' 

Received  April  17,  1832,  of  Eobert  Houston,  six  hundred  dollars 
in  part  pay  of  the  one  half  of  the  Middleford  property,  which  I  have 
sold  to  him.— $600. 

(Signed)  "  Barkley  Tovv'xsexd." 

The  complainant  put  in  a  general  replication  of  insufficiency,  &c. 
to  the  deft.'s  plea  of  the  "  act  alx)ut  contracts  and  assumptions,"  and 
a  special  replication  of  the  above  receipts  as  sufficient  notes  or  mem- 
orandums in  writing  to  take  the  case  out  of  the  act.  The  special 
replication  was  afterwards  stricken  out  by  order  of  the  chancellor, 
and  the  plea  set  down  for  hearing;  and,  after  hearing,  the  chancellor 
decreed  that  the  plea  be  overruled  and  that  the  same  should  stand  for 
an  answer,  and  the  benefit  of  the  same  be  reserved  to  the  deft.  On 
the  general  hearing  of  the  cause  the  chancellor  decreed  that  the  deft. 
Barkley  Town  send  should  account  for  one  half  of  the  rents  and  prof- 
its of  the  lands  of  Thomas  Townsend,  deceased,  which  were  assigned 
to  the  deft,  in  the  orphans'  court,  from  the  10th  ^March,  1832,  to  the 
13th  of  March,  1835,  the  date  of  the  decree;  with  liberty  to  except 
to  said  account,  and  a  general  reservation  of  equity.  "Whereupon  an 
appeal  was  prayed  and  granted. 

Bayard,  for  the  appellant.  The  chancellor  erred  in  over-ruling 
the  plea  of  the  statute  and  in  directing  an  account.  The  case  em- 
braces two  general  questions;  First,  whether  an  agreement  has  been 
proved  that  does  not  come  within  the  statute  of  frauds ;  or.  Second, 
whether  there  has  been  such  a  part  performance  of  a  parol  agreement 
as  will  take  it  out  of  the  statute.  And  to  these  may  be  added  a  third, 
whether  the  terms  of  the  agreement  are  established  with  sufficient 
certainty  to  found  a  decree  upon.  First:  Is  there  any  memorandum 
of  the  agreement,  or  note  in  writing,  such  as  will  prevent  the  statute 
from  applying?  Where  the  writing  is  relied  on  it  must  contain  within 
itself  all  the  terms  of  the  agreement;  it  must  be  sufficient  without 
reference  to  other  proof.  Sitgd.  Vend.  53;  2  Prec.  Ch'y.  Seagood 
vs.  Meale;  12  Vezey,  Jr.  466,  BJagdcn  vs.  Blagden.  An  agree- 
ment not  specifying  the  price  held  insufficient.  The  receipts  in  this 
case  do  not  specify  the  price;  nor  distinctly  point  out  the  property 
sold.  What  constituted  the  "  ^liddleford  property  "  is  matter  of  ex- 
traneous proof;  and  the  receipts  are  entirely  indefinite  as  to  the  quan- 


534  TowNSEND  vs.  Houston. 

tity  of  interest  sold.  2  Sicanston  257.  One  tenn  of  the  agree- 
ment being  omitted,  a  specific  performance  was  refused.  2  Hoven- 
ilen  OH  Frauds  8;  1  Ves.  and  Beam.  524;  Clows  vs.  Higginson, 
13  Johns.  Rep.  300.  All  the  objects  of  the  statute  would  be  thwar- 
ted by  admitting  parol  evidence  to  establish  the  terms  of  an  agree- 
ment not  sufficient  in  itself  to  show  the  contract  of  the  jfJarties.  Sec- 
ond :  If  tTie  court  cannot  enforce  this  as  a  written  agreement  not  fall- 
ing within  the  statute  of  frauds,  does  the  bill  alledge  such  acts  of 
l)art  performance  of  a  parol  agreement  as  will  take  it  out  of  the  stat. 
For  if  the  part  performance  be  not  alledged  no  proof  of  it  can  now 
be  considered  as  we  are  now  considering  the  validity  of  the  plea  to 
the  bill;  and,  of  course,  trying  the  case  on  bill  and  plea.  What  is 
alledged  in  the  bill  as  a  part  performance?  payment  of  a  part  of  the 
])urchase  money  in  cash  and  the  delivery  of  one  half  of  a  schooner 
at  a  certain  valuation.  This  brings  up  the  question  whether  payment 
of  part  of  purchase  money  is  a  part  performance  of  a  parol  agree- 
ment for  the  sale  of  lands  such  as  will  avoid  the  statute  of  frauds 
and  authorize  a  decree  for  a  specific  performance.  I  am  aware  that 
there  are  dicta  in  the  books  which  support  the  affirmative  of  this 
question,  but  the  decisions  are  against  it.  The  question  is  new  in 
this  state;  there  is  but  one  case  in  the  English  courts  in  modern 
times  where  the  point  has  been  decided,  though  there  are  many  an- 
cient ones.  "We  are  then  not  bound  by  authority  but  may  look  into 
the  principle  on  which  this  doctrine  of  part  performance  arises  to  see 
what  is  the  policy  of  our  courts  in  relation  to  it.  The  English 
judges  have  doubted  the  propriety  of  its  introduction  there;  and 
think  the  cases  have  gone  too  far  already.  (1  Mad.  Ch'y.  379.  7 ;  6 
Vezey  32.^  It  is  a  stretch  of  the  equitable  power  of  chancery  in 
avoidance  of  positive  law.  It  is  based  on  the  principle  of  avoiding 
obvious  fraud,  as  where  under  a  parol  agreement  the  vendee  enters 
into  possession  and  improves  the  property;  but,  except  in  such  cases, 
it  would  be  better  to  adhere  to  the  written  law  and  require  all  agree- 
ments for  the  sale  of  lands  to  be  in  writing  than  on  loose  considera- 
tions of  equity  to  open  the  door  to  litigation  and  increase  temptations 
to  fraud  and  perjury.  In  a  case  of  obvious  fraud  the  court  ought,  on 
its  own  principles,  to  afford  relief;  but,  wherever  compensation  can 
be  awarded  to  the  party  in  any  other  way,  it  ought  not  to  enforce  a 
defective  agreement  by  decreeing  its  specific  execution.  The  com- 
plainant comes  into  court  a  defaulter;  having  neglected  to  provide 
himself  with  a  legal  right  to  a  conveyance,  he  is  entitled  only  to 
the  protection  of  the  court  against  fraud,  but  not  to  its  aid  in  com- 
pelling a  conveyance.  If  he  has  paid  a  part  of  the  purchase  money 
he  may  recover  it  back  at  law  and  can't  be  injured;  and  there  is  no 
occasion  for  the  equitable  interference  of  this  court.  The  failure  of 
the  purchase  and  consequent  injury  is  not  the  principle  on  which 
the  court  acts;  for  this  would  be  an  entire  repeal  of  the  statute,  but 
relief  is  granted  on  the  ground  of  fraud  —  where  the  party  who  has 
partly  performed  the  agreement  cannot  be  remunerated-and  would  be 
defrauded  unless  a  specific  execution  of  the  agreement  is  had.  Sngd. 
Vend.  77,  82-7,  90;  2  Hov.  Frauds  3,  4;  1  Mad.  Ch'y.  379;  1  Sch. 
&  Lef.  22,  33  io  40;  6  Yezey  32.  Third:  I  assume  that  if  the 
proof  establish  a  different  agreement  from   that  presented   in  the 


TowxsEXD  VS.  HousTOX.  535 

bill  the  complainant  cannot  have  relief  on  that  hill.  The  party 
must  prove  his  contract  as  he  states  it;  and  this  being  an  application 
to  the  extraordinary  jurisdiction  of  the  court,  against  the  express 
provisions  of  the  statute  law,  the  complainant  will  be  held  to  prove 
his  contract  precisely,  or  will  be  left  to  his  legal  remedy.  2  Hov. 
Frauds  4,  note  2,  6;  5  Vezey  457;  6  do.  554;  1  Mad.  Ch'y.  384-5; 
2  Sch.  &  Lef.  7;  2  Wheaton  341.  The  bill  alledgcs  the  agreement 
to  have  been  that  Houston  should  join  Townsend  in  the  acceptance 
of  the  land  in  the  orphans'  court.  The  proof  is  that  Townsend 
alone  accepted  and  Houston  became  surety  in  the  recognizance.  The 
agreement  was  for  the  residue  of  Thomas  Townsend's  lands,  &c. — 
the  proof  is  concerning  a  sale  of  the  "  Middleford  property,"  &c.  of 
Thomas  Townsend,  and  it  does  not  appear  from  the  agreement  that 
this  Middleford  property  was  all  the  residue.  And  there  is  also  a 
discrepancy  in  relation  to  the  price;  if  indeed  the  proof  establishes 
any  price,  as  having  been  agreed  on,  which  is  denied. 

Frame,  for  appellee,  complainant  below.  This  is  a  bill  for  the 
specific  performance  of  a  parol  agreement  for  the  sale  of  land.  The- 
"  act  about  contracts  and  assumptions  "  being  our  statute  of  frauds 
and  perjuries  is  set  up  as  a  bar  to  the  complainant's  suit;  but  the  bill 
sets  up  sundry  acts  of  part  performance  as  taking  the  case  out  of  that 
statute.  There  is  no  doubt  that  ecpiity  will  extend  its  aid  against  the 
express  provisions  of  the  statute ;  and,  to  prevent  fraud,  will  compel 
a  specific  performance  of  an  agreement  void  by  the  statute.  Xor  is 
there  any  do"bt  that  cases  of  part  performance  are  within  the  aid  of  a 
court  of  equity  on  the  same  principle.  2  Hov.  Frauds  1,  2;  1  Fonhl. 
181-2-5;  1  Mad.  Ch'y.  377.  First:  The  first  question  then  is  whe- 
tlier  the  acts  alledged  in  this  l)ill  do  come  up  to  what  is  considered  a 
part  performance  of  the  contract.  And  here  1  pass  by  the  first 
branch  of  Mr.  Bayard's  argument  and  his  authorities  on  that  suhject, 
because  it  is  not  pretended  that  the  receipts  in  this  case  amount  to 
such  a  note  or  memorandum  of  a  contract  as  to  entitle  us  to  a  decree 
on  the  footing  of  an  agreement  in  writing.  The  contract  is  a  parol 
contract,  and  Ave  go  for  its  execution,  because  it  has  been  partly  per- 
formed on  our  part,  and  it  woiUd  be  against  equity  for  the  deft,  now 
to  refuse  to  execute  it  on  his  part'.  The  receipts  are  not  relied  on  as 
constituting  a  written  agreement,  but  will  be  used  only  as  the  evi- 
dence of  a  parol  agreement  and  of  its  performance  in  part.  The 
principle  on  which  a  court  of  equity  decrees  a  specific  performance 
in  these  cases,  is  the  prevention  of  fraud.  Fraud  is  a  principal  sub- 
ject of  equity  jurisdiction  inherent  in  the  court.  The  statute  was 
enacted  not  to  countenance  or  to  affect  fraud  but  to  prevent  it.  Hence 
where  the  statute  is  set  up  as  a  cover  to  fraud,  and  will  be  the  means 
of  doing  injustice,  as  where  a  party  having  derived  all  the  benefit- 
from  a  contract  seeks  to  avoid  its  obligations  by  a  plea  of  the  statute, 
equity  will,  notwithstanding  the  statute,  compel  him  to  execute  his 
contract  and  do  justice.  Again:  Cases  of  part  performance  are  re- 
garded as  not  falling  Avithin  the  statute,  because  they  are  without  its 
mischief,  which  was  the  tendency  to  perjury.  Part  performance 
consists  of  acts  which  themselves  establish  the  agreement  and  the 
evidence  of  it  does  not  lie  in  words,  but  it  is  proved  by  the  acts  of 
the  parties.     The  danger  of  establishing  parol  agreements  by  false 


636  TowNSEXD  vs.  Houston. 

swearing  is  therefore  avoided.  1  Fojih.  181,  £c.;  Sugd.  Vend.  83,  86; 
1  Mad.  Ch'y.  377;  1  Swanst.  181;  7  Vezcy,  jr.  346;  1  Binn.  218; 
Beeve's  Dom.  Bel.  399,  340;  Powel,  Cont.  291,  <S;c.;  1  Chitty  Dig.  60. 

I  now  proceed  to  the  question,  whether  payment  of  purchase  mon- 
e.y  is  such  a  part  performance  of  a  parol  agreement  for  the  sale  of 
lands  as  will  entitle  the  purchaser  to  a  decree  for  a  specific  execution 
of  the  contract;  and  I  contend  tliat  a  payment  evidenced  as  this  is,  by 
the  -written  receipts  of  the  deft,  and  not  depending  on  mere  parol 
}»roof,  is  such  a  part  performance  both  on  principle  and  authority. 
Lord  Hardwick  in  Lacon  vs.  Mertyns  (S  Atkyns  1)  has  in  my 
opinion  settled  the  question  so  far  as  the  authority  of  his  great  name 
can  settle  it.  Sugden  calls  this  a  dictum  of  Hardwick,  but  it  is  not 
go.  The  point  was  decided  and  was  necessary  to  the  decision 
Lacon  vs.  Mertyns.  And  the  authority  of  that  case  is  recognized  in 
Buckmaster  vs.  Harrop,  7  Vezey  346;  and  by  Mr.  Roberts  in  his 
treatise  on  Frauds,  142-3-4.  The  next  case  was  by  Lord  Chancel- 
lor Roslyn,  which,  if  not  a  decision  is  a  strong  recognition  of  the 
principle.  4  Vezey  720,  Mayne  vs.  Melvin,  distinguishes  between 
the  payment  of  earnest  and  a  paymentlof  part  of  the  purchase  money. 
3  Vezey,  Jr.  39.  The  relief  is  not  confined  to  cases  where  the  party 
cannot  be  restored ;  but  extends  to  all  cases  where  there  has  been  an 
unequivocal  act  of  part  performance,  as  giving  possession,  accepting 
a  considerable  part  of  purchase  money,  &c.  Freeman's  Bep.  281 
(486;)  Skett  vs.  WJiitmore,  in  Lord  Nottingham's  time  it  was  de- 
cided that  where  purchase  money  was  paid  the  court  would  decree  a 
specific  execution.  1  Bac.  Ab.  74,  Tit.  Agreement  C.  (120,)  dis- 
tinctly recognizes  the  payment  of  purchase  money  as  a  part  perform- 
ance, but  says  the  doubt  is  as  to  what  shall  be  deemed  proof  of  this 
])ayment.  If  the  deft,  deny  that  the  money  was  received  in  part 
performance,  the  proof  phould  be  by  some  written  admission  that  it 
was  in  part  execution.  This  proof  is  supplied  in  the  present  case  by 
the  two  receipts  distinctly  referring  to  the  agreement.  The  same 
principle  is  sustained  by  1  Powell  on  Cont.  307;  2  Caine's  cases  in 
Error  109;  1  Peters  Cir.  Ct.  Bep.  388;  and  Boherts  on  Frauds 
153.  It  is  true  that  Roberts  in  his  preface,  after  having  seen  the  case 
of  Clynan  vs.  Cook,  decided  by  Lord  Redesdale  (1  Sch.  and  Le- 
froy  22,)  in  some  degree  retracts  the  opinion  given  in  the  text. 
This  is  the  great  case  which  has  thrown  doubt  over  the  principle. 
Before  it  all  the  elementary  writers  regarded  the  principle  as  settled. 
Now  the  first  remark  I  have  to  make  on  this  case  is  that  it  did  not 
necessarily  present  the  question,  and  the  o])inion  of  the  chancellor 
though  expressed  on  tlie  point  was  not  a  judgment  of  the  court.  The 
case  was  decided  on  other  grounds.  I  agree  that  the  question  was 
raised;  but  it  was  poorly  discussed  and  no  authorities  were  cited.  It 
was  the  case  of  a  written  agreement:  sought  to  be  enforced  as  such; 
the  party  failed  to  show  a  sufficient  memorandum  in  writing  and  of 
course  failed  in  his  cause.  He  was  defeated  not  merely  because  of 
the  statute  of  frauds,  but  on  principles  of  common  law  that  parol  evi- 
dence cannot  be  admitted  to  explain  a  writing.  It  was  moreover,  a 
part  of  the  contract  in  that  ca.«e  that  tlie  ])urchase  money  should  be 
paid  back  with  interest  in  case  the  bargain  failed.     The  chancellor 


TowxsEXD  VS.  Houston.  637 

does  not  notice  the  cases  though  he  uses  the  broad  expression,  in  di- 
rect contradiction  of  Lord  Hardwick,  that  it  has  never  been  consid- 
ered that  payment  of  money  was  a  part  performance.  And  he  cites 
Seagrave  vs.  Meale  (2  Free.  Chy.)  as  a  leading  case  on  the  sub- 
ject. Now  Seagrave  vs.  Meale  was  a  case  of  earnest  and  not  on 
this  subject  at  alL  (-i  Vezey,  Jr.  720.^  There  is  a  manifest  dis- 
tinction between  payment  of  a  sum  down  as  earnest  to  bind  the  bar- 
gain, and  a  payment  of  a  substantial  part  of  the  purchase-money  in 
execution  of  the  contract.  But  the  distinction  does  not  depend  so 
much  on  the  amount  of  the  payment  as  upon  its  character  whether 
as  earnest  or  in  part  execution.  The  cases  cited  on  the  other  side 
are  of  the  former  class.  2  Eq.  cases  abridged  46;  Lord  Pengal 
vs.  Ross,  was  a  case  of  earnest:  (Powell  on  Cont.  306,)  and  it 
is  moreover  impeached  in  4  Vezey  720.  On  a  review  of  the  cases 
on  both  sides,  I  consider  myself  warranted  in  saying  that,  on  author- 
ity, the  payment  of  a  substantial  part  of  the  purchase  money  is  such 
an  act  of  part  performance  as  will  take  the  case  out  of'  the  statute, 
especially  when  such  payment  is  evidenced  by  writing,  and  is  unequi- 
vocally in  execution  of  the  agreement. 

1  shall  now  consider  if  it  be  so  on  principle.  Ordinarily  speaking 
the  payment  of  purchase  money  will  be  the  peculiar  and  only  act  of 
performance  that  the  purchaser  can  do.  All  the  other  acts  must  be 
done  by  the  vendor.  I  agree  that  the  act  of  part  performance  must 
be  an  act  unequivocally  referring  to  the  agreement  and  in  execution 
of  it,  and  such  an  act  as  cannot  be  referred  to  any  other  object.  The 
importance  of  requiring  such  an  act  as  must  be  referred  to  the  agree- 
ment, arises  from  the  fact  that  it  becomes  per  se  evidence  of  the  agree- 
ment and  avoids  the  danger  of  perjury  which  the  statute  was  designed 
to  guard  against.  Is  there  such  an  act  in  this  case?  The  receipts 
specify  that  they  are  in  part  payment  of  purchase  money  and  in  exe- 
'I'ution  of  a  contract  of  sale  of  the  land  in  question.  Another  in- 
:^redient  in  this  act  of  part  performance  is  that  it  shall  place  the  party 
in  such  a  condition  that  he  will  be  defrauded  if  the  contract  be  not 
•executed.  Is  not  that  the  case  here?  And  is  it  not  a  stronger  case 
than  that  of  the  mere  delivery  of  possession  which  is  allowed  to  be 
u  sufficient  part  performance?  What  injury  arises  from  being  put 
into  possession?  The  books  say  (Powell  on  Cont.  Roberts  on 
Fraud  41j  by  being  put  into  possession  he  is  made  liable  as  a  tres- 
]»asser  if  the  bargain  be  not  completed.  Liable  to  whom?  to  the  party 
Avho  put  him  in  possession  and  against  whom  he  could  defend  himself 
}iy  a  plea  of  license.  But  he  would  be  injured  by  being  put  to  the 
]iroof  of  his  license:  and  would  not  Houston  in  this  case  be  put  to  the 
]'roof  of  the  contract,  the  payment  of  purchase-money  and  the  failure 
cf  the  bargain  in  an  action  of  money  had  and  received  to  recover  his 
iioney  back?  1  Mad.  Ch.  378;  Sugd.  Vend.  83,  £c.;  1  Swanst. 
181;  Amb.  586.  I  agree  with  the  other  side  that  the  mere  loss  of 
tie  bargain  is  not  a  ground  for  the  court's  interference;  but  the  party 
must  be  placed  in  such  a  condition,  by  reason  of  his  part  performance 
of  the  agreement,  as  that  it  will  be  a  fraud  on  him  if  the  agreement 
be  not  fully  executed.  In  this  case  there  is  not  only  a  payment  of 
a  large  portion  of  the  purchase  money,  acknowledged  to  be  in  exe- 
cution of  the  contract,  but  the  complainant  has  done  other  acts  in 

68 


538  TowNSEND  vs.  Houston. 

further  execution  of  the  contract  which  can  be  neither  recalled  nor 
remunerated  but  by  completing  the  contract.  Thus  he  became  surety 
for  Townsend  in  his  recognizance  in  the  orphans'  court  and  incurred 
a  liability  which  is  not  even  yet  removed.  He  also,  on  the  faith  of 
the  contract,  endorsed  Townsend's  note  in  bank  for  $1577  50.  It 
is  true  this  liability  is  removed;  but  it  was  done  by  the  respondent 
without  his  consent,  and  with  a  view  to  invalidate  the  agreement.  It 
does  not  therefore  lie  with  him  to  set  up  his  own  wrongful  act,  in 
violation  of  his  contract,  to  avoid  his  contract. 

If  the  court  should  be  ofopinion  that  in  this  case  the  statute  of  frauds- 
does  not  apply,  and  that  it  ought  to  give  relief;  but  should  doubt,  on 
the  present  state  of  the  proof,  as  to  any  of  the  terms  of  the  agreement,, 
cither  as  to  the  property  sold,  the  consideration,  or  any  other  particu- 
lar; this  court  will,  as  a  court  of  chancery  would,  struggle  to  probe 
the  case  to  the  bottom  and  prevent  a  fraud;  and  for  this  purpose  will 
direct  an  issue,  refer  to  a  master,  or  take  other  means  to  get  at  the 
terms  of  the  contract.  Sugd.  92  tfic;  1  Vezey,  Sen'r.  221 ;  2  Vezey, 
Jr.  243 ;  1  Sch.  and  Lef.  1 ;  Viner's  Abdgt.  523  ;pl.4dS;6  Vezey,  Jr. 
470-1;  Dig.  103. 

Second :  A  substantial  proof  of  the  contract  set  out  in  the  bill  will 
be  sufficient.  It  need  not  be  proved  in  the  terms  used  by  the  solici- 
tor in  drawing  the  bill.  A  court  of  equity  sticks  not  to  the  letter; 
but  is  satisfied  by  proof  of  substance.  Thus  an  agreement  to  join 
in  the  acceptance  of  lands  in  the  orphans'  court  is  satisfied  by  proof 
of  becoming  surety  in  the  recognizance  on  such  acceptance,  that  be- 
ing the  only  way  in  which  a  stranger  can  join  the  heir  at  law  in  the 
acceptance  of  intestate  lands;  and  that  being  the  evident  meaning  of 
the  agreement.  The  property  intended  to  be  sold,  and  the  consid- 
eration, can  be  clearly  made  out  by  the  proof  to  be  the  same  as  stated 
in  the  bill :  but,  if  it  could  not,  the  court  would  not  dismiss  the  bill 
on  that  account,  but  would  resort  to  means  in  its  power  of  obtaining 
satisfactory  proof  on  these  points. 

J.  M.  Clayton,  in  reply,  for  appellant.  Before  examining  whe- 
ther payment  of  purchase  money  is  a  suificient  part  performance  of 
a  parol  agreement  to  take  it  out  of  the  statute  of  frauds,  I  shall  deny 
that  there  is  in  this  case  sufficient  proof  of  a  definite  agreement  even 
by  parol.  It  is  not  denied  that  in  all  the  cases  where  a  parol  agree- 
ment has  been  executed  on  the  ground  of  part  performance ;  the  agree- 
ment itself  has  been  either  admitted  or  fully  proved.  The  contract 
must  be  distinctly  made  out,  and  all  the  acts  relied  on  as  a  part  per- 
formance must  be  referable  to  the  contract  and  not  to  some  contract 
undefined,  or  to  any  other  contract  than  that  stated  and  proved.  The 
complainant  will  not  be  allowed  to  make  experiments  on  the  charac- 
ter of  his  proof  by  stating  one  agreement  and  proving  a  different 
one;  keeping  in  view  the  danger  of  perjury  which  the  statute  was 
intended  to  avoid,  and  the  peculiar  character  of  bills  for  specific  per- 
formance, he  will  be  held  strictly  to  the  proof  of  whatever  contract 
he  alledges  to  have  been  made;  and  if  he  fails  to  establish  it  in  all  its 
material  parts,  his  bill  will  be  dismissed.  The  contract  stated  in  this 
bill  is,  "  that  the  complainant  should  join  Townsend  in  the  accep- 
tance of,  and  that  Townsend  should  sell  and  convey  to  complainant 
one  half  of  the  residue  of  the  real  estate  of  Thomas  Townsend  de- 


TowNSEXD  VS.  Houston.  539 

ceased.  The  conversation  preceding  was  about  joining  him  in  the 
acceptance;  the  agreement  was  to  join  in  the  acceptance.  It  was 
not  a  contract  to  become  the  surety  of  Townsend  on  his  acceptance 
of  the  land.  They  were  to  be  partners;  both  to  take  title  under  the 
assignment;  each  to  bear  part  of  the  expenses.  Now  this  contract 
has  never  been  performed  nor  can  it  be  performed,  as  the  decree  of 
the  orphans'  court  assigning  all  the  land  to  Townsend  makes  it  im- 
possible. Neither  does  the  proof  of  the  property  about  which  the 
contract  was  made,  meet  the  -allegations  of  the  bill.  The  receipts 
are  "  in  part  pay  of  the  one  half  of  the  Middleford  property  which 
I  have  sold  to  him," —  and  again,  "  in  part  pay  of  the  half  of  the 
mill  property  &c.  in  Middleford;"  and  the  testimony  speaks  loosely 
of  the  To\\Tisend  property.  Does  this  answer  the  description  of  "  one 
half  of  the  residue  of  the  real  estate  of  Thomas  Townsend,  deceased?" 
What  proof  is  there  of  it?  And  there  is  equal  uncertainty  as  to 
the  price.  Second:  The  decree  is  that  Barkley  Townsend  the  re- 
spondent shall  account  for  one  half  of  the  rents  from  the  10th  of 
March,  1832,  a  period  before  he  had  possession  of  the  land,  or  was 
entitled  to  it  in  any  other  manner  than  to  his  undivided  share  of  his 
father's  estate.  The  decree  assumes  a  title  in  Houston  from  the  10th 
March,  1832,  because  on  that  day  Townsend  received  $600  00,  and 
agreed  to  make  a  deed  "  when  called  for."  Now  if  this  were  a  suf- 
ficient written  agreement,  not  within  the  statute,  he  could  not  be 
entitled  to  the  land  until  he  called  for  a  deed,  which  he  did  not  do 
until  February,  1833.  The  decree  is  therefore  erroneous  in  this  re- 
spect. Third:  I  come  then  to  the  question  whether  a  part  payment 
of  purchase-money  takes  a  parol  agreement  for  the  sale  of  land  out 
of  the  statute  of  frauds  and  entitles  the  party  to  a  decree  for  a  specific 
execution;  and  I  lay  it  down  that  by  the  law  of  England  and  of  this 
country  neither  part  payment  nor  payment  of  the  whole  of  the  pur- 
chase-money will  take  a  case  out  of  the  statute.  And  it  makes  no 
difference  that  the  payment  is  proved  by  writing,  unless  the  writing 
itself  contains  a  memorandum  of  the  agreement  sufficient  to  satisfy 
the  statute.  I  take  up  the  case  relied  on  by  Mr.  Frame  (Lacon  vs. 
Mertyns,  3  AtJc.  1;)  and  notwithstanding  his  sneer  on  Sugden,  I 
hold  that,  on  this  subject,  Sugden  is  an  authority  not  inferior  to 
Lord  Hardwick  himself.  After  reviewing  all  the  cases  he  says  of 
the  case  in  Atkyns  that  it  was  only  a  dictum.  Is  this  true?  The 
answer  admitted  the  contract;  and  it  was  a  contract  in  writing;  how 
in  such  a  case  could  the  question  come  up  broadly  whether  part  pay- 
ment took  a  parol  contract  out  of  the  statute?  All  the  mischief  against 
w^hich  the  statute  was  designed  to  provide  is  avoided  by  the  admis- 
:5ion  of  the  contract.  The  case  is  otherwise  unsatisfactory.  Atkyns 
:s  a  slovenly  and  inaccurate  reporter ;  and  so  known  to  be.  The  coun- 
sel intimated  that  Sugden  considered  the  point  as  settled  until  the 
decision  of  Lord  Eedesdale  in  Clynan  vs.  Coolc.  But  Sugden  ev- 
idently treats  it  as  an  unsettled  point,  and  in  reviewing  the  cases 
apparently  leans  against  the  doctrine;  and  he  welcomes  the  decision 
:n  Clynan  vs.  Coolc,  as  finally  settling  the  law  on  that  subject.  It 
is  remarkable  that  two  of  the  greatest  lawyers  in  existence  should 
have  been  atithe  same  time  considering  this  question;  one  in  England 
fud  the  other  in  Ireland ;  and  that  both  should  come  to  the  same  con- 


540  TowNSEND  vs.  Houston. 

elusion.  Roberts  though  generally  a  frothy  writer  did  consider  this 
subject  as  fully  as  he  was  competent  to  investigate  any  subject;  and 
he  regrets  that  a  direct  decision  had  not  been  made  against  the  prin- 
ciple; and  he  also,  after  receiving  the  case  of  Clynan  vs.  Cook  put 
it  in  his  preface  as  settling  a  question  which  in  his  text  he  had  treated 
of  as  doubtful.  Buckmaster  vs.  Harrop  (t  Vezey  346^  is  fully 
answered  in  Clynan  vs.  Cook.  The  remark  referred  to  in  Wayne 
vs.  Melden,  (4:  Vezey  720^  was  a  mere  obiter  dictum;  so  says  Sug- 
den,  (page  89^  Freeman,  281,  is  a  statement  of  counsel  and  no  de- 
cision; and  4  Vezey,  Jr.  39  —  note,  is  nothing  but  a  remark  of  the 
editor.  Bacon's  Abridgment  is  of  doubtful  authority,  and  of  no 
weight  unless  supported  by  references,  and  Peter's  Cir.  Ct.  Rep. 
is  rather  against  the  other  side.  I  deny  therefore  that  the  question 
has  been  considered  as  settled  against  us  before  the  case  of  Clynan 
vs.  Cook;  and  since  that  case  the  law  has  been  considered  by  all  the 
writers  as  settled  the  other  way.  I  refer  generally  to  Newland  in 
his  able  review  of  the  subject,  and  to  Hovenden  as  cited  before. 

Suppose  the  court  should  think  from  the  proof  that  there  was  some 
contract  about  the  sale  of  this  land  but  are  uncertain  as  to  its  terms, 
will  they,  as  suggested  by  the  other  side,  send  an  issue?  Can  any 
case  be  found  where,  after  publication  of  the  testimony  —  when  the 
parties  know  what  each  witness  has  sworn  to  and  in  what  respect  they 
nave  failed  to  come  up  to  the  point  —  after  a  cause  is  set  down  for 
hearing  —  heard  —  determined  —  appealed  from  and  heard  on  appeal 
—  the  case  has  again  been  fully  opened  and  the  parties  permitted  to 
prove  any  thing  they  could  before  a  jury.  This  would  be  to  throw 
the  doors  wide  open  to  perjury;  and  avoid  all  the  beneficial  effects  of 
the  statute  of  frauds.  It  is  insisted  that  this  contract  must  be  exe- 
cuted or  that  Houston  Avill  be  defrauded.  It  is  said  he  entered  into 
recognizance  and  became  liable  to  loss.  What  is  this  responsibility? 
a  recognizance  for  $7500;  on  which  $600  has  been  paid  and  the  rec- 
ognizance a  lien  on  all  the  property  for  the  balance.  But  he  endorsed 
also  in  Bank.  He  was  relieved  of  that  responsibility  the  moment  he 
complained  of  it.  There  is  then  no  fraud.  There  is  nothing  in  the 
case  but  the  payment  of  money  which  can  be  recovered  back  in  an 
action  at  law. 

The  Chancellor  (Johns  Jr.)  assigned  the  reasons  for  his  decree  at 
length. 

After  stating  the  case  as  before,  pp.  325,  &c.  he  proceeds: — The 
decision  of  this  case  appears  to  me  to  depend  on  that  of  two  ques- 
tions. First :  Whether  there  has  been  a  part  performance.  Second : 
If  there  has,  then  whether  the  terms  of  the  parol  contract  as  set  forth 
in  the  bill  are  clearly  proved.  It  is  now  settled,  that  equity  does 
decide  upon  equitable  grounds  in  contradiction  to  the  positive  enact- 
ment of  the  statute  of  frauds;  and  in  cases  of  part  performance,  will 
admit  parol  testimony  to  prove  the  terms  of  a  parol  contract,  relative 
to  land.  Hovenden  Tit.  Spec.  Per.  1,  2.  The  ground  of  equitable 
interposition,  is  the  prevention  of  fraud:  Vide  Foxcraft,  vs.  Lis- 
ter, Colles  Pari.  Ca.  108;  Jeremy's  Eg.  Treatise,  437;  2  Atk. 
100;  1  Br.  Ch.  Ca.  417 ;  1  Siranst. 'iSl;  7  Ves.  341;  3  Fes.  39-40 
and  note;  Parkliurst  vs.  Voncourfland,  14  Johns.  Rep.  on  Appeal. 
Whether  payment  of  part  of  the  purchase  money  is  such  a  part  per- 


TowxsEND  VS.  Houston.  5il 

f  ormance  as  takes  the  case  out  of  the  statute,  appears  to  be  an  unsettled 
point  and  the  decisions  are  contradictory.  1  Madd.  379;  Sugdeii 
Ven.  81  to  85.  The  early  decisions  upon  the  subject  are,  Lord 
Pengal  vs.  Ross,  2  Eq.  Ca.  Ab.  46;  Seagood  vs.  Meale,  Free,  in 
Ch.  560;  Luke  vs.  Morris,  2  Ch.  Ca.  135;  these  are  generally 
cited  as  authorities  to  the  point  that  it  will  not,  but  I  would  remark 
with  respect  to  them,  that  they  are  adverted  to  in  subsequent  decisions 
as  cases  in  which  only  a  small  sum  was  paid  as  earnest;  and  in  3  AtJc. 
1;  3  Ves.  37;  Uh  Ves.  720;  it  is  held  that  part  payment  of  the  pur- 
chase-money does  take  the  case  out  of  the  statute  upon  the  principle 
of  part  performance.  Ihese  decisions  have  been  objected  to  as  extra 
judicial  by  Sugden  and  nothing  more  than  dicta;  he  refers  to  one 
made  by  Lord  Eedesdale  as  conclusive;  1  Sch.  and  Lef.  41.  Upon 
looking  into  this  case  it  appears  to  me,  the  contract  was  in  writing, 
"  the  sum  paid  was  in  the  agreement  stated  to  he  a  deposit,  and  in- 
terest to  he  paid,  if  possession  not  delivered;"  the  plff.  seeking  a 
specific  performance  of  this  written  contract,  which  was  under  seal, 
attempted  to  supply  by  parol  proof  one  of  the  terms  alledged  to  have 
been  omitted.  It  is  true  in  this  case  Lord  Eedesdale  does  take  up 
the  question  whether  part  payment  is  part  performance;  and  reasoning 
upon  the  case  before  him  and  its  circumstances  concludes  therefrom 
and  also  from  the  peculiar  phraseology  of  the  English  stat.  of  frauds, 
that  part  payment  of  purchase-money  does  not  take  the  case  out  of 
the  statute  of  frauds;  for  he  says,  the  great  reason,  as  I  think  why 
part  payment  does  not  take  such  agreements  out  of  the  statute  is, 
that  the  statute  has  said  that  in  another  case,  viz:  with  respect  to 
goods,  it  shall  operate  as  part  performance.  And  the  courts  have 
therefore  considered  this  as  excluding  agreements  for  lands,  because 
it  is  to  be  inferred,  that  when  the  legislature  said  it  should  bind  in 
the  case  of  goods  and  were  silent  as  to  the  case  of  lands,  they  meant 
that  it  should  not  bind  in  the  case  of  lands.  As  this  distinction  does 
not  exist  in  the  act  of  assembly  about  contracts  and  assumptions, 
which  is  the  act  relied  on  by  the  deft,  in  this  case,  it  may  be  ques- 
tioned whether  Lord  Redesdale's  opinion  can  have  any  influence,  es- 
pecially as  his  reason  does  not  apply. 

So  far  as  1  have  been  able  to  trace  the  question  in  the  American 
decisions  upon  the  point  of  part  payment ;  they  accord  with  decisions 
and  dicta  of  Lord  Hardwicke  and  Eosshoi.  In  the  case  of  Wetmore 
vs.  White,  2  Caine's  Ca.  m  Error;  (New  York)  Thompson,  J. 
in  delivering  the  opinion  of  the  court,  (pa.  109)  says  expressly,  pay- 
ment of  tlie  consideration  money  had  always  been  held  as  a  part  per- 
formance. Judge  Eeeve  under  the  title,  "Powers  of  Chancery,"  in 
his  treatise  on  Dom.  relations,  has,  after  stating  the  conflicting  de- 
cisions on  this  point,  remarked  in  his  peculiar  manner,  "  that  if  it  be 
no  fraud  to  receive  anothers  money  on  the  footing  of  a  parol  agree- 
ment, and  then  to  refuse  the  fulfilment  of  the  agreement,  then  the  cases 
in  Free,  in  Ch.  Eq.  Ca.  Ah.  &  Sch.  &  Lefroy,  are  correct,  if  the 
governing  principle  of  the  interference  of  chancery  was  to  prevent 
fraud ;  but  if  it  be  fraud  so  to  do,  then  they  are  incorrect  and  the  cases 
in  Vern.  3  Atk.  &  4  Yes.  are  correct,  which  proceed  on  the  ground 
that  the  prevention  of  fraud  was  the  reason  why  they  were  supposed 
not  to  be  within  the  statute.    Jus.  Washington,  in  the  case  of  Thorn p- 


542  TowNSEND  vs.  Houston. 

son  vs.  Tod,  1  Peters.  Cir.  Ct.  Rep.  388,  says,  "although  it  should 
be  admitted,  that  under  all  the  circumstances  of  this  case,  payment  of 
a  part  of  the  purchase-money  will  amount  to  a  part  performance,  still 
it  should  appear  beyond  all  reasonable  doubt,  that  the  payment  was 
understood  by  the  parties  to  have  been  so  made  and  intended. 

This  opinion  of  Washington,  J .  accords  with  the  principles  as  laid 
down  in  Powell  on  Cant.;  and  1  Bac.  Ab.  74,  tit.  Agreement.  I 
will  refer  to  what  is  said  by  Bacon  upon  the  subject  of  part  perform- 
ance as  it  recognises  essential  principles  and  states  the  rule  of  evi- 
dence with  respect  to  the  payment  of  purchase-money.  Under  the 
title  of  Agreement,  Bacon  says  —  There  are  several  cases,  on  which 
it  has  been  held,  that  a  parol  agreement  in  part  executed  shall  be  per- 
formed in  the  whole ;  but  as  those  cases  are  not  exactly  stated  or  well 
reported,  it  will  be  sufficient  to  mention  what  seems  to  be  the  sense 
of  them,  and  what  with  any  justness  can  be  collected  from  them, 
that  if  an  agreement  be  made  concerning  lands,  though  not  in  writ- 
ing, and  the  party  by  whom  it  was  made  receives  all  or  part  of  the 
money,  equity  will  compel  a  specific  performance  of  the  whole  agree- 
ment; because  this  is  out  of  the  statute,  which  designed  to  defeat 
such  agreements  only,  no  part  whereof  were  carried  into  execution, 
and  set  up  merely  by  parol;  for  that  was  the  occasion  of  frauds  and 
perjuries,  that  persons  used  to  impose  verbal  agreements  upon  others, 
and  by  such  false  oaths  charge  the  parties  in  equity  to  perform  such 
agreements  though  they  had  never  been  made,  and  therefore  the 
mere  parol  proof  of  such  agreements  concerning  lands  cannot  be 
admitted  in  a  court  of  equity;  but  where  the  price  is  paid,  there  it 
doth  not  stand  upon  the  parol  proof  of  the  agreement  only,  but  upon 
the  execution  of  part  of  the  agreement,  which  is  evidence  that  the 
agreement  was  really  made;  and  therefore  there  is  the  same  reason 
that  the  plff.  in  equity  should  have  the  land  for  his  money,  as  it  is 
that  he  should  deliver  the  goods  where  he  has  received  the  money; 
but  the  doubt  in  these  cases  is,  what  shall  be  a  proof  of  the  receipt 
of  the  money.  Thus  far  it  seems  certain,  that  if  the  deft,  in  his 
answer,  confesseth  the  receipt  of  the  money  for  that  purpose  in  the 
bill,  or  if  he  denies  the  money,  and  it  be  proved  upon  him  by  wri- 
ting, as  by  letter  under  his  hand,  or  other  written  evidence,  he  shall 
be  obliged  specifically  to  perform  the  whole  agreement,  because  he 
hath  carried  part  into  execution;  but  if  the  deft,  confesses  the  re- 
ceipt of  the  money,  but  says  that  he  borrowed  it  from  the  plff.,  and 
that  he  had  it  not  in  execution  of  that  agreement,  there  he  tum^ 
the  proof  of  the  agreement  upon  the  plff.  and  then  the  plff.  must 
prove  the  receipt  of  the  money  by  the  deft,  for  the  purpose  in  the 
bill,  by  some  written  agreement,  (note  6.)  for  parol  evidence  as  to 
the  receipt  of  the  money,  seems  to  be  as  much  excluded  by  the  stat. 
as  parol  evidence  relating  to  the  agreement.  From  the  investigation 
of  the  several  cases,  I  came  to  the  conclusion,  that  there  may  be  ca- 
ses, in  which  payment  of  the  whole  or  part  of  the  purchase-money 
will  amount  to  performance  of  a  parol  contract  concerning  lands; 
and  whenever  the  non-performance  on  the  part  of  the  vendor  after 
receiving  the  purchase-money  or  a  part  thereof  would  put  the  party 
into  a  situation  that  is  a  fraud  upon  him,  unless  the  agreement  is  per- 
formed, the  court  upon  the  principle  of  preventing  fraud  should  de- 


TowNSEND  VS.  Houston.  543 

cree  a  specific  performance;  provided  the  terms  of  the  agreement  can 
be  satisfactorily  ascertained,  that  is,  the  agreement  as  set  forth  in  the 
bill.  The  act  relied  on  as  part  performance  should  be  such  as  would 
not  have  been  done  independent  of  some  contract  or  agreement  rela- 
tive to  land;  because  as  you  are  from  the  act  performed  to  infer 
a.  contract,  it  must  therefore  be  an  act  of  that  description,  which 
will  not  admit  any  other  inference.  I  would  further  remark,  that 
the  act  must  to  a  certain  extent  be  a  joint  act,  or  such  as  clearly  in- 
dicates mutual  assent;  thus  entering  into  the  possession  of  land  as 
owner  and  with  the  consent  of  the  vendor,  has  uniformly  been  con- 
sidered and  admitted  to  be  part  performance,  and  being  evidence  per 
se  of  an  agreement  for  and  concerning  the  land,  the  party  seeking 
specific  performance,  is  permitted,  by  parol,  to  prove  the  terms. 
This  act  of  the  vendee  in  entering  upon  the  land  and  taking  posses- 
sion thereof  as  owner,  with  the  assent  of  the  vendor,  is  considered 
as  in  execution  of  an  agreement  and  therefore  a  part  performance; 
but  acts  which  are  only  preparatory  such  as  giving  directions  for 
conveyances,  taking  a  view  of  the  estate  or  putting  a  deed  into  the 
hands  of  a  solicitor  to  prepare  a  conveyance,  are  not  considered  part 
performance.  Clerk  vs.  Wright,  1  Atk.  12;  6  Bro.  Par.  Ca.  45; 
3  Bro.  Ch.  C.  400;  1  Mad.  381.  So  likewise  where  there  was  a 
parol  agreement  for  a  compromise  and  a  division  of  the  estate  by  ar- 
bitration, acts  done  by  the  arbitrators  towards  the  execution  of  their 
duty,  such  as  surveying,  &c.  were  not  considered  as  acts  of  part  per- 
formance, 6  Ves.  41.  And  where  there  was  a  parol  agreement  for 
the  purchase  of  a  lease,  and  that  upon  the  plff.  procuring  a  release  of 
right  from  a  stranger,  the  deft,  would  convey,  and  the  plff.  procured 
the  release  for  a  valuable  consideration,  this  was  held  not  to  be 
a  part  performance  entitling  the  party  to  a  specific  performance,  2 
Cox.  271.  These  cases  and  particularly  the  last  clearly  evince  the 
principle,  which  is  essential  to  constitute  an  act,  a  part  performance ; 
the  thing  done  must  be,  as  before  stated,  in  execution  of  the  con- 
tract, and  not  as  preparatory  or  as  inducement.  See  Gevins  vs.  Cal- 
der,  2  Des.  190.  Hence  has  arisen  the  difficul'ty  with  respect  to  the 
payment  of  money,  not  being  such  an  act  as  of  itself  is  conclusive, 
for  it  may  have  been  made  for  a  purpose  different  from  that  alledged 
and  if  the  party  paying  can  by  parol  prove  the  fact  of  payment  and 
the  object,  then  it  is  apparent  the  door  is  open  to  perjury  and  fraud, 
and  the  statute  would  be  rendered  useless  and  its  provisions  defeated. 
This  has  no  doubt  given  rise  to  the  opinion  that  payment  of  money 
either  in  part  by  way  of  earnest  or  in  full  for  the  purchase  is  not  a 
part  performance;  if  the  fact  is  to  be  established  by  parol,  then  I 
should  consider  the  opinion  to  be  well  founded,  but  if  the  fact  of 
payment,  is  connected  with  the  concurrent  act  of  the  vendor  re- 
ceiving and  appropriating  the  money  paid  as  purchase-money  and 
this  appears  either  by  the  deft,  in  his  answer  confessing  the  receipt 
of  the  money  for  that  purpose  as  charged  in  the  bill,  or  if  denied  'it 
be  proved  upon  him  by  writing,  as  by  letter  under  his  hand  or  other 
written  evidence;  or  if  the  deft,  confesses  the  receipt  of  the  money, 
but  says  he  borrowed  it  from  plff.  and  had  it  not  in  execution  of  the 
agreement,  then  if  the  plff.  prove  the  receipt  of  the  money  by  the 
deft,  for  the  purpose  in  the  bill  by  some  written  agreement;  in  all 
such  cases  and  upon  every  principle  it  seems  to  me  such  a  fact  thus 


544  TowNSEND  vs.  Houston. 

appearing  would  be  conclusive  evidence  of  an  existing  agreement  of 
which  it  was  part  performance  and  which  the  deft,  having  carried 
part  into  execution  should  be  compelled  specifically  to  perform  the 
whole.  In  the  case  now  under  consideration,  the  complainant  in  his 
bill  has  charged  the  pa3ments  made  on  account  of  the  purchase-mon- 
ey and  in  execution  of  the  agreement  set  forth.  The  deft,  in  his 
answer  admits  the  receipt  of  the  money,  as  an  advancement,  pending 
the  treaty  for  sale,  but  denies  that  said  advancements  were  a  part  per- 
formance of  an  agreement  to  sell  and  convey  the  said  real  estate  or  any 
part  thereof  to  complainant,  and  also  admits  the  two  receipts.  As  the 
answer  here  admits  the  receipt  of  the  money  and  denies  that  it  was 
in  part  performance,  we  must  recur  to  the  receipts  of  10th  March, 
1832,  and  April  17th,  1832,  which  are  admitted  by  the  deft,  and 
proved  by  the  witnesses  to  be  signed  by  him;  these  receipts  unequi- 
vocally establish  the  fact  of  part  payment  to  the  amount  of  $1400, 
nearly  one  half  the  purchase-money  as  set  forth  by  the  complainant 
in  his  bill;  the  deft,  has  also  admitted  the  proceedings  in  the  or- 
phans' court  relative  to  the  acceptance,  and  has  not  denied  the  matter 
stated  by  the  complainant  as  to  the  inducement  why  he  entered  as 
surety  in  the  recognizance.  The  equity  of  the  complainant  as  thus 
presented  is  strong  and  a  case  could  not  occur  more  in  accordance 
with  the  rule  as  laid  down  by  Bacon  that  that  which  appears  from 
the  two  receipts.  The  deft,  by  the  first  receipt  dated  March  10th, 
1832,  has  not  only  acknowledged  the  receipt  of  $800,  but  also  says 
"  which  is  in  part  pay  of  the  half  of  the  mill  property  in  Middleford 
which  I  promise  to  deed  when  called  on."  The  proceedings  in  the 
orphans'  court  of  the  same  date  show  the  property  and  the  accep- 
tance by  the  deft,  fix  the  quantity;  thus  the  subject  matter  of  the 
parol  contract  and  to  which  the  receipts  refer  by  name,  as  the  mill 
property  in  Middleford,  is  ascertained;  a  moiety  of  which,  the  deft, 
by  said  receipt  declared  he  had  sold  complainant;  and  by  the  accep- 
tance, it  is  proved  to  be  two-thirds  of  the  residue  of  the  Middle- 
ford property,  which  deft,  accepted  at  the  valuation  of  which  a 
moiety  or  half  part  he  sold  to  the  complainant.  This  is-  a  question 
which  as  it  relates  to  the  terms  of  the  contract  will  be  hereafter  con- 
sidered and  properly  belongs  to  the  second  question  to  which  I  will 
now  advert ;  and,  under  the  circumstances  of  the  case,  being  of  opinion 
that  the  payments  on  account  of  the  purchase-money  made  and  pro- 
ved as  afsd.  are  such  acts  as  amount  to  part  performance,  I  will 
now  take  up  the  second  question,  viz.  whether  from  the  testimony  in 
the  case,  the  terms  of  the  agreement  set  forth  in  the  bill  are  clearly 
proved. 

It  being  the  settled  rule  of  the  court  of  chancery  that  where  a  con- 
tract relating  to  an  interest  in  lands  has  been  executed  by  one  party, 
or  carried  partly  into  execution,  it  may  be  proved  by  parol  evidence 
and  specific  performance  decreed,  in  order  that  one  side  may  not 
take  advantage  of  the  statute,  to  be  guiltv  of  fraud  (1  Ves.  221,  297; 
2  Johns.  Rep.  221,  573,  587;  1  Serg.  &Bawl.  80;  5  Day  16;  Parh- 
hurst  vs.  Vancourtland,  14  Johns.  Rep.  on  appeal  15.  And  from  the 
circumstances  of  this  case  as  I  was  of  opinion  that  the  part  payment 
of  the  purchase-money  is  a  part  performance  of  the  contract  set  forth 
in  the  bill,  the  next  consideration  was  whether  that  contract  was  made 


TowNSEND  VS.  Houston.  545 

out  by  clear  and  satisfactory  proof.  Upon  this  subject  Sugden  86,  re- 
marks, It  may  happen  that  although  an  agreement  be  in  part  perform- 
ed, yet  the  court  may  not  be  able  to  ascertain  the  terms,  and  then  it 
seems  the  case  will  not  be  taken  out  of  the  statute.  If  however  the 
terms  be  made  out  satisfactorily  to  the  court,  contrariety  of  evidence  is 
not  material  (1  Ves.  221)  and  the  court  will  use  its  utmost  endeavors 
to  get  at  the  terms  of  the  agreement.  (2  Ves.  243 ;  2  Sch.  &  Lef.  1 ; 
5  Vin.  Ahr.  523;  PI.  40;  Ih.  522;  PI.  38;  6  Ves.  jr.  470;  3  Br.  Ch. 
139 ;  1  Sch.  &  Lef.  22^.  In  6  Ves.  jr.  470,  Boardman  vs.  Mostyn,  Ld. 
Elden  says;  perhaps  if  it  was  res  Integra  the  soundest  rule  would  be 
that  if  the  party  leaves  it  so  uncertain,  the  agreement  is  not  taken  out 
of  the  stat.  sufficiently  to  be  enforced :  but  in  all  the  cases  in  equity, 
the  court  has  at  least  endeavored  to  collect  if  they  could,  what  were 
the  terms  the  parties  have  referred  to.  Sugden  on  Vendors,  89,  after 
stating  the  case  lately  decided  by  Lord  Manners,  and  remarking  that 
great  reluctance  had  been  manifested  in  carrying  parol  agreements 
into  execution  on  the  ground  of  part  performance,  where  the  terms 
do  not  distinctly  appear,  observes  that  notwithstanding  the  case  de- 
cided by  Lord  Manners,  there  appears  to  be  abundant  authority  to 
prove,  that  the  mere  circumstance  of  the  terms  not  appearing,  or 
being  controverted  by  the  parties,  will  not  of  itself,  deter  the  court 
from  taking  the  best  measures  to  ascertain  the  real  terms.  And  Sug- 
den further  remarks,  that  it  can  rarely  happen  that  an  agreement 
cannot  be  distinctly  proved  where  the  estate  is  absolutely  sold:  most 
of  the  cases  on  this  head  have  arisen  on  leases,  where  the  covenants 
&c.  are  left  open  to  future  consideration.  If  from  the  testimony  it 
is  difficult  to  ascertain  the  terms  of  the  agreement,  the  court  to  re- 
move all  doubts  direct  an  issue.  Hence  in  the  case  now  before  the 
court,  if  I  am  correct  in  the  opinion  I  have  expressed  on  the  first 
point  as  to  part  performance,  then  it  would  be  incumbent  on  the  court 
to  ascertain  the  terms  of  the  contract,  or  if  this  could  not  be  done  to 
direct  an  issue  as  to  such  facts  as  may  not  be  clearly  proved  or  estab- 
lished. The  only  fact  about  which  there  can  be  a  doubt  in  the  present 
case,  is  the  price.  The  subject  matter  of  the  contract  and  the  quan- 
tity thereof  sold,  and  for  which  the  deft,  promised  to  give  a  deed 
on  demand,  I  consider  settled  beyond  all  controversy,  by  the  receipts 
signed  by  deft,  and  bearing  date  March  10th  1832,  and  April  17th 
1832;  and  their  operation  and  extent  fully  and  unequivocally  ascer- 
tained when  taken  in  connection  with  the  proceedings  relative  to 
the  acceptance  of  said  real  property  by  deft.,  in  the  orphans'  court 
of  Sussex  county,  and  the  testimony  of  Boyce  and  Elligood;  the 
deft,  having  by  the  acceptance  acquired  a  title  to  two  thirds  of  the 
real  estate  of  his  father,  Thomas  Townsend,  deceased,  described  as 
the  mill  property  in  Middleford;  and  by  the  receipts  dated  March 
10th  and  April  17th  1832,  deft,  acknowledges  to  have  received  the 
sums  mentioned,  in  the  first  receipt  in  part  pay  of  the  half  of  the 
mill  property  in  Middleford,  which  he  promised  to  deed  when  called 
on;  by  the  second  receipt  he  says  in  part  pay  of  the  one  half  of  the 
Middleford  property  which  I  have  sold  him.  Thus  much  appearing 
to  the  court  by  these  receipts  which  are  proved  in  the  cause  and 
not  even  denied,  except  evasivelv,  as  to  their  import,  in  the  answer, 

69 


546  TowNSEND  vs.  Houston. 

1  shall  proceed  to  the  inquiry  whether  the  testimony  satisfactorily 
establishes  what  was  the  consideration  agreed  upon. 

The  complainant  in  his  bill  sets  forth  the  consideration  and  alledges 
the  same  to  be  $3750,  and  then  proceedis  to  state  the  manner  in 
which  it  was  agreed  he  was  to  pay  the  same  to  deft.  The  deft,  in 
his  answer  denies  that  any  sum  of  ev^r  had"  been  in  fact  agreed  upon. 
The  answer  thus  positively  denying  the  fact,  unless  the  same  is  es- 
tablished, either  by  the  testimony  of  two  witnesses  or  of  one  cor- 
roborated by  circumstances,  the  denial  in  the  answer  must  be  con- 
clusive. As  this  is  one  of  the  essential  terms  of  an  agreement,  and 
necessary  to  be  ascertained,  I  will  advert  to  the  testimony.  The  first 
witness  on  the  part  of  the  complainant  (the  deft,  not  having  taken 
any  testimony)  is  that  of  Capt.  Boyce,  who  in  his  disposition  states, 
"  that  the  deft,  in  the  month  of  April  or  May,  1832,  informed  him 
he  had  sold  half  of  the  Middleford  mills  and  property  to  complainant 
and  purchased  the  schooner  Tanner  and  scow  from  him  for  $625; 
price  of  real  property  not  stated ;  that  he  could  have  got  more  for  said 
property  than  he  had  agreed  to  let  Robert  Houston  (complainant) 
have  it  for."  Now  it  does  appear  that  although  no  price  was  sta- 
ted, by  the  witness,  yet  his  testimony  proves  two  facts,  viz.  that  the 
deft,  had  sold  half  of  said  property  to  the  complainant  and  for  a 
consideration  agreed  upon  between  the  plff.  and  deft.,  because  the 
defendant  in  stating  to  the  witness  that  he  had  sold,  had  he  said 
nothing  more,  would  have  afforded  strong  ground  of  presumption, 
but  when  he  goes  on  to  state,  that  he  could  have  got  more,  for  said 
property,  than  he  had  agreed  to  let  Robert  Houston  have  it  for,  he 
thereby,  unequivocally  refers  to  a  fixed  price,  settled  and  agreed 
upon,  between  the  parties;  otherwise  how  could  he  with  any  pro- 
priety say,  he  could  have  got  more  for  said  property  ? 

The  admission  of  the  deft,  as  proved  by  this  witness,  is  therefore 
at  variance  with  that  part  of  his  answer  which  denies  that  any  price 
or  sum  or  terms  were  agreed  upon  or  fixed  between  compl't.  and  deft, 
for  the  purchase  of  the  said  real  estate  by  the  complainant;  hence, 
unless  the  testimony  of  capt.  Boyce  is  either  sustained  by  another 
witness  or  corroborating  circumstances,  it  cannot  prevail,  against 
the  positive  denial  of  the  deft,  which  is  made  under  oath.  But 
it  does  further  appear  from  the  deposition  of  J.  A.  Elligood,  that 
some  time  in  the  spring  of  1833,  at  the  time  when  complainant  ten- 
dered the  alledged  balance  of  the  purchase-money,  that  the  deft,  in 
presence  of  Elligood,  in  replying  to  what  complainant  stated,  to  be 
the  contract  or  agreement,  admitted,  "  that  he  had  heretofore  agreed 
to  convey  said  property  to  him,  for  the  amount  mentioned,  but  that 
it  would  be  unjust  that  he  should  convey  for  that  sum,  being  one 
half  of  the  valuation-money.  From  the  testimony  of  these  two 
witnesses,  both  unimpeached  and  not  controverted,  except  by  the 
denial  in  the  answer,  it  does  appear,  that  the  parties  had  agreed  upon 
the  price  or  sum  constituting  the  consideration,  and  from  Elligood's 
the  sum  is  ascertained  to  be  half  of  the  valuation  and  thus  rendered 
certain,  because  id  certum  est  quod  certum  reddi  protest;  and  by  re- 
ferring to  the  record  of  the  orphans'  court  which  is  in  evidence  in  this 
cause,  the  one  half  of  the  valuation,  appears  to  be  the  sum  of 
$3750,  as  alledged  in  complainant's  bill.     In  considering  the  testi- 


TowNSEND  VS.  Houston.  547 

mony  in  relation  to  this  fact,  of  the  sum  or  price  not  having  been 
fixed  or  agreed  upon  by  the  parties  the  deposition  of  Noonan  in  con- 
nection with  the  answer  at  lirst  view  appeared  to  present  some  un- 
certainty whether  the  sum  fixed  or  agreed  upon  was  the  half  of  the 
valuation,  or  half  what  the  property  cost  deft.,  and  whether  under 
the  term  half  what  the  property  cost,  could  be  included  the  half  of 
other  expenses  relative  to  the  procuring   the    act    of    assembly,  &c. 
they  being  properly  a  charge  against  the  fund  generally.     But  the 
deposition  of  this  witness  has  relation  to  declarations  of  Townsend 
as  to  what  he  intended  to  do  and  not  like  the  others  of  what  he  had 
done.     The  subsequent  information  of  Townsend's,  that  there  was  a 
misunderstanding  between  him  and  Houston,  does  not  disclose  the 
cause,  only  that  it  was  about  the  purchase  of  the  Middleford  prop- 
erty.    From  the  declarations  of    Houston  to    Noonan,  it    does    ap- 
pear that  it  related  to  the  extra    expenses    which    it    appears    were 
never  adjusted  although  he  seems  to  have  been  willing  to  pay  his  fair 
proportion.    From  the  declarations  and  the  occasion  when  they  were 
made,  both  before  Noonan  and  Elligood,  I  was  induced  to  believe 
this  difficulty  about  extra  expenses  originated  after  the  deft,  had  re- 
fused to  perform  the  agreement.     I  was  led  to  this  opinion  by  the 
import  of  deft.^s  letter  addressed  to  complainant,  dated  April  26th, 
1832.    In  this  letter  the  deft,  attributes  the  interruption  of  the  busi- 
ness to  some  unpleasant   circumstance,   which  he   was   to   communi- 
cate to  the  complainant  when  he  should  see  him,  and  evidently  at- 
tributes the  non-compliance  on  his  part  to  the  interposition  of  some 
people,  "  who  he  says  made  themselves  very  busy  and  who   knew 
well  tohen  to  stop  it,  &c."    If  the  real  difficulty  had  been  a  misun- 
derstanding about  the  extra  expense,  would  it   not   have   been    dis- 
closed in  this  letter  of  the  26th  of  April;  why  intimate  that  he  was 
compelled  to  relate  a  circumstance  that  was  very  disagreeable  to  him; 
surely  if  the  other  had  been  the  difficulty,  it  would  have  been  stated 
with  propriety,  without  occasioning  any  unpleasant  feeling  such  as 
the  letter  implies,  nor  could  such  a  matter  be  in  any  way  referred  to 
the  interposition  of  other  people.      The  letter    of    the    26th    April, 
M'ritten  a  few  days  after  Houston  and  paid  the  deft.  $600,  evidently 
discloses  that  the  writer  was  by  no  means  satisfied  with  the  course 
he  was  then  adopting.    He  had,  by  the  money  and  credit  of  the  com- 
plainant, after  discharging  the  debts  against  his  deceased  father's 
estate,  been  enabled  to  accept  the  two-thirds  thereof  at  the  valuation 
reduced  more  than  one  half    by  the  amount  of    incumbrances    and 
debts  paid  off,  and  in  the  course  of  the  proceeding  as  appears  from 
the  records  of  the  orphans'  court  had  the  benefit  of  the  complainant's 
credit  as  one  of  his  sureties  in  the  recognizance  —  a  liability  yet  sub- 
sisting.   From  these  circumstances  appearing  in  the  cause,  it  is  evi- 
dent the  deft,  availed  himself  of  the  full  benefit  of  the  agreement  so 
far  as  the  same  had  been  performed  by  Houston  and  did  not  make 
known  his  determination  not  to  comply  with  the  same  on  his  part 
until  he  had  obtained  all  the  advantage  he  expected  to  derive  from 
it.     Upon  the  ground  therefor  that  under  the  circumstances  of  this 
case  it  would  be  a  fraud  upon  the  complainant,  if  a  specific  perfrrm- 
ance  was  refused,  I  was  of  opinion  the  complainant  was  entitled  to 
relief,  but  before  the  same  could  be  granted  it  was  necessary  to  di- 


548  Roach  vs.  Maetin's  lessee. 

rect  an  account  of  the  rents  and  profits  of  the  one  half  of  the  two 
thirds  of  the  real  estate  for  which  the  deft,  by  the  receipt  dated 
March  10th,  1832,-  promised  to  give  to  complainant  a  deed  on  de- 
mand —  and  as  equity  considers  as  done  that  which  is  agreed  to  be 
done,  I  regarded  the  right  of  the  complainant  to  the  one  half  of  the 
two-thirds  of  the  said  real  estate  as  a  perfect  and  subsisting  title  in 
equity  from  the  date  of  the  aforesaid  receipt ;  and  that  it  carried  with 
it  the  right  to  the  rents  and  profits  and  entitled  the  deft,  from  that 
time  to  the  balance  of  the  purchase  money  with  interest,  subject  to 
deductions  for  such  paj'ments  as  might  be  clearly  proved  to  have 
been  made;  and  which,  when  the  rents  and  profits  shall  be  accounted 
for  under  an  interlocutory  order,  will  be  ajijusted,  and  the  balance 
due  on  account  of  the  purchase  money  being  thus  ascertained,  then 
the  court  will  be  able  to  make  a  final  decree  in  the  cause." 

The  court  affirmed  the  interlocutory  decree  of  the  chancellor,  with, 
costs,  adopting  the  general  views  presented  by  him  in  explanation 
of  his  decree. 


Decree  affirmed. 


J.  A.  Bayard  and  J.  M.  Clayton,  for  appellant. 
Frame,  for  appellee. 


JAMES  ROACH,  deft,  below  vs.  The  lessee  of  JAMES  MARTIN, 

plff.  below. 

A  devise  "  to  A  and  her  heirs  forever  except  she  should  die  unthout  an  heir 
born  of  her  oton  body,"  then  over  to  B  is  an  estate  tail  in  A  with  a  vested 
remainder  in  B,  and  not  a  contingent  fee  with  an  executory  devise. 

An  order  of  the  orphans'  court  directing  a  sale  of  lands  for  the  payment  of 
debts  is  conclusive  as  to  every  matter  necessary  to  the  making  such  order; 
and  such  matter  cannot  be  enquired  into  collaterally  in  any  other  proceeding. 

Under  the  old  act  of  assembly  the  record  of  a  deed  was,  by  the  settled  practice 
of  the  courts,  permitted  to  be  read  in  evidence,  though  such  deed  had  not 
been  recorded  within  a  year  from  its  execution. 

Writ  of  error  to  the  superior  court  —  Sussex. 

Coram  —  Johns,  Jr.  chancellor.  Black  and  Robinson. 

This  cause  was  argued  by  James  A.  Bayard  and  Clayton  for  ap- 
pellant and  Frame  for  the  respondent,  on  the  three  points  presented 
and  decided  by  the  court  below.    See,  ante  477,  &c. 

The  counsel  for  the  appellant  contended  that  the  Judgment  of  the 
court  below  was  erroneous: — 

First.  In  permitting  to  be  read  in  evidence  the  proceedings  had  in 
the  orphans'  court  for  the  sale  of  the  land  of  Hannah  Heavilo,  on  the 
petition  of  Benjamin  Johnson,  executor  of  John  Heavilo  who  was 
the  executor  of  the  said  Hannah  Heavilo. 

Second.  In  admitting  as  evidence  the  record  of  the  deed  from 
Benjamin  Johnson,  executor  of  John  Heavila  who  was  executor  of 
Hannah  Heavilo  to  Mary  Fergus ;  the  said  deed  not  having  been  re- 
corded within  one  year  from  its  execution. 

Third.  In  construing  the  devise  to  Eliza  Fergus,  in  the  will  of  the 
said  Mary  Fergus,  to  be  an  estate  tail  with  remainder  in  fee  to  James 
Martin;  and  not  an  estate  in  fee  with  an  executory  devise  over. 


EoACH  VS.  Maetin's  lessee.  549 

Mr.  Justice  Black  delivered  the  following  opinion  of  the  court: 

Black  Justice  — 

"  It  is  a  rule  of  law  now  well  established  that  a  devise  to  a  person 
and  his  heirs,  wjth  a  remainder  limited  over,  if  the  devisee  dies 
without  issue  or  heirs  of  the  body,  is  a  fee  reduced  or  narrowed  to 
an  estate  tail,  and  that  the  devise  over  is,  (when  such  words  are 
used)  to  take  effect  after  an  indefinite  failure  of  issue  and  is  void  by 
way  of  executory  devise,  as  being  too  remote.  Although  the  im- 
mediate devise  imports  a  fee  (the  word  heirs  being  introduced)  it  is 
restricted  or  controlled  by  the  words  subsequently  used  in  the  will 
manifesting  the  design  of  the  testator  to  limit  the  operation  of  the 
word  "  heirs  "  to  those  of  the  hody,  and  to  give  to  the  devisee  an 
estate  tail  instead  of  a  fee.  This  rule  is  not  denied  in  the  argument 
on  the  present  occasion,  and  will  be  found  to  be  sustained  by  the  sub- 
joined authorities.  6  Cruise  202;  5  Term  335;  7  Term  276;  9  East 
382;  12  East  254;  4  Maule  &  Sel.  62;  1  Com.  Law  379;  5  Com. 
Law  373 ;  4  Kent's  Com.  200,  274-6. 

Did  Eliza  Fergus  take,  in  the  lands  devised  by  the  fourth  clause 
of  the  will,  an  estate  in  fee,  with  a  limitation  over,  which  would  be 
good  by  way  of  executory  devise,  to  James  Martin  according  to  the 
settled  principles  of  law;  or  did  she  take  an  estate  tail,  with  a  re- 
mainder over  to  James  Martin  contingent  on  the  event  of  her  issue 
or  heirs  failing. 

It  is  admitted  on  the  part  of  the  counsel  of  the  plff.  in  error  that 
if  the  words  "  except  she  should  die  without  an  heir  born  of  her  own 
body,"  import  an  indefinite  failure  of  heirs  of  the  body  of  Eliza 
Fergus,  and  not  a  failure  of  heirs  at  the  period  of  her  decease,  that 
then  Eliza  took  an  estate  tail.  But  if,  as  they  insist,  the  limitation 
over  to  James  Martin  was  to  take  effect  only  on  the  event  of  Eliza 
Fergus  dying  mthout  having  had  an  heir  born  of  her  own  body, 
or  without  having  an  heir  born  of  her  body,  living  at  her  death,  that 
then  the  contingency  on  which  Martin  was  to  take  was  determined 
at  the  death  of  Eliza,  and  that  the  limitation  to  him  would  in  that 
case  be  sustained  as  a  valid  executory  devise,  and  Eliza  held  to  have 
an  estate  in  fee  in  those  lands. 

The  term  "  heir  "  has  assigned  to  it  b)'  judicial  determinations  its 
appropriate,  peculiar  and  technical  import  and  meaning,  and  that  im- 
port and  meaning  it  is  to  receive  unless  there  is  something  in  the  will 
clearly  excepting  it  from  this  general  rule,  and  showing  that  when 
used  it  was  designed  that  this  technical  import  should  not  be  applied 
to  it.  In  its  legal  import  or  signification  it  is  not  a  word  of  purchase, 
nor  a  designatio  personae,  but  is  nomen  collectivum,  and  used  as  a 
word  of  limitation,  and  will  carry  the  land  devised  not  only  to  the 
immediate  heir  or  issue,  but  to  all  those  who  descend  from  that  de- 
visee. It  is  immaterial  whether  the  term  "  heir  "  or  "  heirs  "  be  used, 
as  the  law  has  assigned  to  each  of  these  the  same  import,  and  they 
each  embrace  the  same  class — all  the  lineal  descendants  of  the  original 
stock  or  root.  Croke  Jac.  145;  Croke  Eliz.  313;  2  Yernon  449; 
5  Term  335;  Har.  &  But.  notes  p.  9,  note  45.  In  Burleys  case  re- 
ported in  1  Ventris  230;  4  Bac.  Ah.  260;  there  was  a  devise  to  A. 
for  life,  with  remainder  to  the  next  heir  male,  and  for  default  of  such 
Jieir  male,  the  remainder  over,  which  was  adjudged  to  be  an  estate 


550  HoACH  vs.  Mabtin's  lessee. 

tail,  on  the  ground  that  the  word  "heir"  was  nomen  collectivura 
and  carried  the  estate  not  only  to  the  immediate  heir  or  issue  of  A. 
but  to  all  to  those  who  descended  from  him. 

In  Whiting  vs.  Wilkins,  1  Bulstrode  219  which  was  a  devise  to  one 
forever,  and  after  his  decease  to  his  heir  male  forever,  it  was  held 
that  "  heir  male  "  and  "  heirs  male  "  are  all  one  and  the  same,  because 
"  heir  "  was  nomen  collectivum,  and  that  the  devisee  took  an  estate 
in  tail  male.  In  the  caSe  of  Hales  Les.  vs.  Vandegrift,  reported  in 
3  Binn.  374;  a  devise  to  A.  and  his  lawful  begotten  "heir"  for- 
ever, was  adjudged  to  be  an  estate  tail,  the  term  "heir"  being 
nomen  collectivum.  In  the  case  of  Osborne  vs.  Shrieve  et  al, 
3  Mason  391;  (Cox's  digest  254j  a  devise  to  A.  and  his  heir  male 
and  to  his  heirs  and  assigns  forever,  but  if  A.  should  depart  this  life 
leaving  no  male  heir  lawfully  begotten  of  his  body,  then  to  B.  in 
fee,  was  held  an  estate  in  tail  male  in  A.  with  a  remainder  over  to  B. 
As  nomen  collectivum  the  term  "  heir  "  therefore  in  its  technical  im- 
port, is  a  word  of  limitation  and  not  a  word  of  purchase,  or  discriptio 
personae.  In  this  latter  sense  it  is  sometimes  used  when  the  mani- 
fest intention  of  the  testator  requires  that  it  should  be  so  used,  but 
only  when  words  of  limitation  are  superadded  to  the  term  "heir," 
showing  that  the  testator  intended  the  "  heir  "  to  be  the  root  of  a  new 
inheritance  or  the  stock  of  a  new  descent.  The  term  "  heir  "  thus 
used  describes  the  person  from  whom  the  inheritors  of  the  land  are- 
to  issue,  and  such  "  heir  "  takes  not  by  descent  from  his  parent,  but 
by  purchase  and  by  direct  devise  under  the  will.  He  is  the  root  or 
stock  of  the  inheritance  and  descent  and  the  parent  is  not  the  root  or 
stock  from  which  the  descendants  or  heirs  are  to  issue.  To  effect 
this  change  of  the  technical  import  of  the  term  "  heir  "  there  must  as 
we  have  said  be  superadded  to  it  words  showing  the  intent  of  the 
testator  that  this  "  heir  "  was  to  be  the  root  of  inheritance,  as  in  Ar- 
cher's case  1  Coke  66,  cited  by  the  counsel  for  the  plff.  in  error, 
where  the  limitation  was  to  A.  for  life  and  to  the  next  heir  male  and 
to  the  heirs  male  of  the  body  of  such  next  heir  male.  By  super- 
adding the  words  "to  the  heirs  male  of  the  body  of  such  next  heir 
male  "  the  testator  showed  that  he  designed  the  "  heir  "  before  men- 
tioned to  be  the  root  from  which  the  heirs  were  to  issue  to  whom  the 
land  should  go.  So  also  in  the  case  of  ClarJc  vs.  Day,  in  CroTce 
Eliz.  313,  which  was  a  devise  to  a  daughter  for  life,  and  if  she  have 
heirs  lawfully  begotten,  then  the  daughter's  heir  should  have  the- 
land  after  the  daughter's  death,  "  and  the  heir  of  such  heir."  These 
latter  words  point  to  the  daughter's  "  heir "  as  the  root  or  stock ; 
makes  that  term  a  designatio  personae  and  that  heir  to  take  by  pur- 
chase under  the  will  and  not  by  descent  from  its  mother.  So  also 
in  the  case  of  Luddington  vs.  Kime,  1  Lord  Raymond  203,  1 
Salk.  224,  where  lands  were  devised  to  Evers  Armyn  for  life,  and 
in  case  he  should  have  any  issue  male,  then  to  such  issue  male  and 
his  heirs  forever.  Issue  in  this  case,  in  order  that  the  intention  of 
the  testator  might  take  effect,  had  not  its  technical  import  (a  collec- 
tive one  signifving  all  the  descendants,)  but  it  was  held  as  denoting 
a  particular  person  from  whom  the  heirs  or  issue  were  to  spring  and 
was  taken  as  a  word  of  purchase.  Cases  of  a  like  complexion 
may  be  found  in  1   Ventris  230;  1  Strange   12;  Croke,  Eliz.  453; 


Roach  vs.  Maetin's  lessee.  551 

4:  Kent's  Com,  220;  1  Fearne  on  Rem.  227,  234,  242,  279,  283  ;Powel 
on  Dev.  360. 

In  all  these  cases  the  first  devisee  took  an  estate  for  life  and  not  one 
of  inheritance,  and  we  are  not  aware  of  any  case  in  the  books, 
where  the  first  devisee  was  in  fee,  that  the  technical  import  of  the 
term  heir  or  issue,  has  been  held  as  a  word  of  purchase,  even  where 
words  like  those  referred  to  have  been  superadded.  We  cannot, 
therefore,  under  an  inspection  of  this  will  hold  the  term  heir  to  be  a 
description  of  the  person  who  was  to  take,  or  a  word  of  purchase, 
as  urged  by  one  of  the  counsel  for  the  plff.  in  error.  There  are  no 
words  superadded  pointing  to  this  "  heir  "  as  the  root  of  inheritable 
blood  or  giving  her  the  character  of  a  taker  by  purchase ;  on  the  con- 
trary to  the  parent  of  this  heir  was  given  an  estate  of  inheritance  "  ex- 
cept she  died  without  an  heir  born  of  her  own  body."  If  she  died 
leaving  "  an  heir  born  of  her  own  body,"  her  estate  of  inheritance  was 
not  defeated  but  remained  in  her,  and  at  her  decease  passed  by  descent 
to  such  heir  and  not  by  purchase. 

The  stress  of  the  argument  for  the  plff.  in  error,  however,  was  on 
the  words  "except  she  should  die  without  an  heir  born  of  her  own 
body,"  which  are  used  in  the  devise  to  the  daughter  Eliza  Fergus  in 
the  fourth  clause.  They  contend  that  by  the  peculiar  language  used — 
horn  of  her  own  body — -the  testatrix  intended  to  use  the  term  heir 
not  in  its  technical  sense  as  a  collective  term  embracing  all  descen- 
dants, but  in  a  personal  or  individual  or  restricted  sense,  and  that  the 
term  "  heir  "  was  to  be  confined  to  and  embrace  only  the  individual 
designated  and  not  the  descendants  of  that  heir — in  other  words  that 
heir  was  to  be  construed  as  if  the  term  "  child  "  had  been  used. 

The  words  heir  of  the  body;  heir  lawfully  begotten  of  his  body, 
j(3  Mason  391;  1  Fearne  242;)  heirs  of  them  on  their  bodies  lawfully 
(8  Term  211)  have  all  been  held  to  mean  one  and  the  same  thing;  to 
begotten;  (4  Term  605 ;)  if  both  die  without  issue  of  their  own  bodies; 
describe  the  class,  and  not  the  person;  to  embrace  all  heirs  or  all  is- 
sue, and  all  descendants.  Do  the  words  "  an  heir  born  of  her  own 
body,"  more  particularly  designate  a  child  or  an  immediate  descen- 
dant of  the  body,  than  do  the  words  we  have  referred  to,  "  heir  law- 
fully begotten  of  the  body ;  or  "  heirs  on  their  bodies  lawfully  begot- 
ten "  or  "  issue  of  their  oivn  bodies ; "  and  yet  these  words  have 
been  held  as  embracing  all  the  lineal  descendants — all  heirs  or  issue 
proceeding  from  the  body  how  remote  soever  the  descent  may  be. 

The  heir  or  issue  of  the  body  of  an  individual,  can  only  be  the 
heir  or  issue  of  that  individual's  own  body  —  the  heir  or  issue  born  of 
that  individual's  own  body,  that  is,  issuing  from,  that  body.  The  term 
heir  begotten  on  the  body,  (4  Term,  605)  is  not  confined  to  the  im- 
mediate or  first  descendant  of  the  body,  but  embraces  all  proceeding 
from  that  descendant ;  and  we  can  see  no  reason  why  the  term  '  the 
heir  born  of  her  own  body,"  can  on  any  principle  be  more  restricted 
or  confined.  The  language  in  each  case  is  equally  plain  and  strong 
and  the  same  legal  interpretation  of  these  words  must  prevail.  In 
the  case  of  Doe  on  the  demise  of  Gregory  vs.  Whichelo,  in  8  Term, 
211,  where  the  limitation  over  was  in  the  event  of  the  son  and 
daughter  dying  without  issue  of  their  o^vn  bodies,  the  term  own, 
(which  is  also  used  in  this  will)  was  not  considered  as  having  any 


552  BoAOH  vs.  Mabtin's  lessee. 

peculiar  influence,  or  as  having  any  other  import  than  the  words  their 
bodies  would  have  had,  or  as  changing  the  settled  legal  and  techni- 
cal import  of  the  expression  "  dying  without  issue."  The  term 
"  heir  "  is  not  less  technical  or  comprehensive  than  the  word  issue, 
but  the  contrary,  and  yield  its  legal  import  with  greater  difficulty 
than  the  word  issue.  4  Term,  299.  When  the  words  first,  next, 
or  eldest  have  been  prefixed  to  the  term  "  heir  "  in  a  will,  they  have 
not  been  held  as  sufficient  to  show  an  intent  in  th£  testator  to  control 
its  technical  import,  as  will  appear  from  the  cases  collected  by 
Mr.  Powell  in  his  treatise  on  devises,  page  361,  2.  We  can  see 
nothing  in  this  will  which  can  induce  us  to  think  it  was  the  design 
of  this  testatrix  in  using  the  word  heir,  to  use  it  in  any  other  than 
its  settled  technical  sense;  that  is  as  embracing  all  the  descendants 
from  the  body  of  her  daughter  Eliza  Fergus,  and  not  to  confine  it  to 
the  child  of  Eliza  to  the  exclusion  of  a  grandchild,  and  to  allow  the 
estate  to  go  over  to  Martin,  while  Eliza  left  a  grandchild  living, 
although  she  might  not  have  left  to  survive  her  a  child  or  an  imme- 
diate "  heir  born  of  her  own  body." 

In  our  judgment  then  the  words  used  in  this  will  "except  she 
should  die  without  an  heir  born  of  her  own  body,"  are  to  receive 
the  same  construction  as  is  or  would  be  given  to  the  words  "  except 
she  should  die  without  heirs  or  issue  of  her  body."  Such  words 
have  by  judicial  decisions  which  this  court  must  respect,  received  a 
certain  fixed  legal  import,  which  should  not  be  disturbed — they  im- 
port an  indefinite  failure  of  issue — a  failure  of  descendants  of  the 
first  taker  without  reference  to  any  particular  time  or  event,  and 
that  a  devise  over  after  such  an  indefinite  failure  of  issue,  cannot 
take  effect  by  way  of  executory  devise,  but  is  void,  is  a  rule  too  well 
established  and  too  familiar  to  the  profession  to  render  it  necessary 
to  refer  to  adjudged  cases  to  sustain  it. 

If  we  should  hold  that  Eliza  Fergus  took  a  fee  in  the  lands  devised 
in  the  fourth  clause,  we  should  render  null  and  forever  inoperative 
the  limitation  over  to  James  Martin,  as  it  could  not  take  effect  as  an 
executory  devise,  being  too  remote.  In  this  point  therefore  we 
should  defeat  the  intention  of  the  testatrix,  who  intended  that  Mar- 
tin should  have  this  portion  of  her  real  estate  whenever  there  was  a 
failure  of  issue  from  the  daughter.  Further :  under  such  a  construc- 
tion James  Martin  would  take  nothing  by  this  limitation,  if  Eliza 
died  leaving  a  child,  and  that  child  had  died  without  issue  in  an  hour 
after  its  mother ;  and  yet  this  is  the  very  state  of  things,  in  which  it 
was  manifestly  the  design  of  the  testatrix  that  this  land  should  pass 
to  Martin ;  that  is,  when  all  the  issue  of  the  daughter  was  extinct. 

It  was  urged  by  one  of  the  counsel  for  the  plff.  in  error,  that  this 
clause  gave  to  Eliza  a  fee  with  an  executory  devise  over  to  Martin 
which  was  to  be  determined  during  the  life  of  Eliza  Fergus,  or  at 
the  moment  of  her  death,  and  was  therefore  good ;  that  if  she  had  a 
child  horn  of  her  body,  the  limitation  over  was  defeated  even  if  such 
child  or  its  issue  did  not  survive  her.  This  surely  was  not  the  in- 
tention of  the  maker  of  this  will:  she  intended  that  Martin  should 
have  this  land  if  Eliza  died  leaving  no  issue,  and  not  that  it  should 
escheat  to  the  State,  which,  from  Eliza's  illegitimacy,  would  have  been 
the  result  had  she  died  intestate,  as  she  could  have  no  other  than 


Roach  vs.  Martin's  lessee.  553 

lineal  heirs.  So  to  construe  this  will  would  render  it  necessary 
most  materially  to  change  its  language,  and  to  introduce  into  it 
words  which  the  testatrix  has  not  placed  there — in  fact  to  make  a 
will  for  her.  The  will  is  not,  as  the  argument  of  the  counsel  would 
render  it  necessary  that  it  shoula  he,  except  my  daughter  should  die 
without  ever  having  had  an  heir  born  of  her  own  body;  then  over, 
&c. :  but  it  is  except  "  she  should  die  without  an  heir  born  of  her 
own  body ; "  that  is,  without  leaving  an  heir  born  of  her  body ;  then 
over  to  J.  Martin. 

According  to  another  view  taken  by  the  counsel  of  the  plff.  in 
error  of  this  clause  of  the  will,  the  daughter  was  to  have  a  fee  in  this 
part  of  the  estate  if  she  died  leaving  an  immediate  descendant  of 
her  own  body,  that  is  leaving  a  child.  That  the  executory  devise 
over  was  to  be  decided  by  this  event,  which  would  make  it  a  good 
executory  devise  within  the  rules  of  law,  as  it  would  either  take 
effect  or  be  defeated  at  the  moment  of  the  death  of  the  daughter  who 
was  then  in  being  that  if  Eliza  died  without  leaving  an  immediate 
descendant  of  her  own  body,  that  is  without  leaving  a  child  to  sur- 
vive her,  the  lands  on  her  decease  passed  under  the  limitation  to 
James  Martin  as  a  valid  executory  devise.  If  this  construction 
should  obtain,  this  result  would  in  a  certain  state  of  things  arise,  that 
Martin  would  take  this  land  notwithstanding  a  grand-daughter  of 
Eliza  Fergus  was  in  being,  which  unquestionably  could  never  have 
been  the  intention  of  the  testatrix :  if  Eliza  had  had  a  child  and  that 
child  should  have  had  a  child  and  died  in  the  lifetime  of  Eliza  leav- 
ing this  child  to  survive  her,  such  child  not  being  the  immediate  de- 
scendant or  child  of  Eliza,  but  her  grandchild,  would  not  on  her 
decease  be  held  according  to  the  argument  to  be  an  heir  horn  of 
Eliza's  own  body,  and  there  being  no  such  heir  living  at  her  death 
the  executory  devise  to  Martin  would  take  effect,  and  the  grand-child 
be  excluded  from  all  benefit  or  participation  in  this  part  of  the  estate. 
Xo  one  can  for  a  moment  suppose  that  such  an  intention  existed  in 
the  mind  of  this  testatrix  when  making  this  will. 

It  would  appear  from  an  examination  of  the  different  parts  of  this 
will  to  have  been  the  design  of  Mary  Fergus  to  make  some  differ- 
ence in  the  nature  of  the  estates  given  to  her  daughter,  in  the  two 
parcels  of  land  devised  to  her.  The  store  hous^,  lot  and  granary  is 
devised  to  James  Martin  for  ten  years,  and  then  given  to  the  daugh- 
ter in  fee,  without  any  limitation;  while  the  lands  devised  by  the 
fourth  clause  of  the  will  are  given  to  her  and  her  heirs  with  a  limi- 
tation over,  of  those  lands  only,  to  ]\Iartin  in  the  event  of  her  dying 
without  an  heir  born  of  her  body.  This  limitation  does  not  extend 
to  the  store  house,  lot  and  granary,  nor  is  there  in  the  will  any  thing 
relating  to  it  restricting  it  to  an  estate  tail.  Had  no  difference  in  the 
nature  of  the  estates  given  to  the  daughter  been  intended  by  the  tes- 
tatrix, it  would  have  been  natural  to  have  extended  this  limitation  in 
favor  of  her  friend  to  all  the  lands  devised  the  daughter. 

The  intention  of  the  maker  of  this  will  seems  to  be  plain  and  free 
from  all  reasonable  doubt  or  question,  and  it  is  the  duty  of  this  court 
to  carry  that  intention  into  execution,  unless  it  conflicts  with  some 
settled  rule  of  law.  Her  design  manifestly  was  to  give  to  her  friend 
James  ]\rartin  the  store  house,  lot  and  granarv  for  ten  vears,  and 

70  ■ 


554  Roach  vs.  Maetin's  lessee. 

that  it  should  then  pass  to  her  daughter  in  fee  simple ;  and  to  give  the 
remainder  of  her  real  estate  to  her  daughter  in  tail  to"  be  enjoyed  by 
that  daughter  and  the  issue  of  her  body,  and  that  if  at  any  time  there 
was  a  failure  of  such  issue,  that  such  remainder  of  her  real  estate 
should  then  vest  in  James  Martin  in  fee.  It  is  an  established  rule  of 
law  that  if  a  devise  can  take  effect  as  a  remainder  it  shall  never  be 
construed  an  executory  devise.  Effect  can  be  given  to  this  devise 
to  Martin,  according  to  the  express  design  of  the  testatrix,  if  we 
construe  this  an  estate  tail  in  Eliza  Fergus  with  a  remainder  limited 
over  to  him  on  the  contingency  of  her  dying  without  issue — the  limi- 
tation would  take  effect  if  the  issue  failed,  and  if  the  issue  did  not 
fail  it  was  not  intended  by  the  testatrix  that  it  should  take  effect — 
on  the  other  hand  the  devise  to  Martin  will  be  forever  defeated  if  we 
hold  that  Eliza  Fergus  took  an  estate  in  fee;  as  the  limitation  over, 
being  on  an  indefinite  failure  of  issue,  could  never  take  effect  as  an 
executory  devise.  To  construe  this  a  fee  tail  in  Elijza  Fergus  gives 
full  operation  to  all  the  intentions  of  the  testatrix  in  favor  of  the  sev- 
eral objects  of  her  good  will  and  in  the  other  she  designed;  that  is, 
first  to  her  daughter,  next  to  the  issue  of  that  daughter  and  then  to  her 
friend  James  Martin ;  any  other  interpretation  would  or  might  defeat 
one  or  other  of  those  objects  and  thus  frustrate  one  of  the  testatrix's 
designs.  This  construction  instead  of  conflicting  with  settled  princi- 
ples is  in  perfect  conformity  with  those  which  have  been  established 
by  a  series  of  adjudications,  namely:  that  a  devise  in  fee  with  a  re- 
mainder over  if  the  devisee  dies  without  issue  or  without  an  heir,  or 
without  heirs  of  the  body  is  a  fee  cut  down  to  an  estate  tail.  5  Term 
335;  7  do.  276;  9  East  383;  12  do.  254;  4  Maul.  &  Selw.  62;  1  Com. 
Law  379;  5  Com.  Law  373;  4  Kent's  Com.  200,  274-6. 

It  may  be  proper  to  notice  an  argument  urged  by  the  counsel  for 
the  plff.  in  error  to  this  effect — That  the  testatrix  by  the  fourth  clause 
of  her  will  devised  to  her  daughter  all  the  remainder  of  her  estate  both 
real  and  personal  and  limited  over  to  Martin  that  real  and  personal 
property  if  her  daughter  died  without  an  heir  born  of  her  own  body. 
That  under  this  clause  the  daughter  unquestionably  took  the  personal 
estate  absolutely,  and  that  in  no  event  could  Martin  have  any  bene- 
fit by  this  limitation  in  relation  to  it,  as  words  in  a  will  which  when 
used  in  reference  to'lands  give  an  estate  tail  theren,  will  when  used 
in  relation  to  personal  property  give  an  absolute  estate  in  that  species 
of  property:  that  it  was  the  intention  of  the  testatrix  to  limit  over 
to  Martin  both  the  real  and  personal  estate  on  the  same  contingency: 
that  this  intention  is  defeated  if  the  words  used  are  held  to  give  an  es- 
tate tail,  but  will  he  sustained  as  of  both  kinds  of  property,  if  they  are 
held  to  give  an  estate  in  fee  with  an  executory  devise  over  to  James 
Martin.  We  do  not  feel  the  force  of  this  argument,  or  consider 
that  it  can  be  of  any  weight  in  the  present  case.  It  may  have  been 
and  probably  was  the  design  of  the  testatrix  to  limit  over  to  Martin 
both  the  real  and  personal  estate,  if  her  daughter  died  without  issue, 
and  this  intention  should  prevail  unless  it  conflicts  with  some  fixed 
rule  of  law.  If  it  does  so  conflict,  the  rule  must  prevail  and  the  in- 
tention yield  to  it.  The  intention  in  tliis  case  then,  as  it  is  urged, 
was  to  give  an  estate  in  fee  in  both  kinds  of  property  with  the  limita- 
tion over,  unquestionably  after  an  indefinite  failure  of  issue,  and  this 


Roach  vs.  Martin's  lessee.  555 

the  law  will  sustain.  The  rule  cannot  bend  to  the  presumed  inten- 
tion, or  be  given  up  to  effect  that  intention. 

In  holding  the  words  of  this  will  to  create  an  estate  tail,  the  daugh- 
ter takes  the  personal  estate  absolutely,  not  in  consequence  of  the 
expressed  intention  of  the  testatrix,  that  she  shall  so  take  it  but 
because  the  law  has  established  a  fixed  legal  import  to  certain  words 
when  used  in  reference  to  personal  estate.  That  if  property  of  this 
species  be  bequeathed  to  a  person  and  the  heirs  of  his  body,  the  legatee 
takes  such  property  absolutely  and  not  in  tail.  But  the  law  has 
equally  well  established  the  legal  acceptation  of  these  same  words 
when  applied  to  real  estates,  that  they  do  not  in  the  latter  case 
give  an  absolute  estate  or  one  in  fee,  but  an  estate  tail.  As  to  each  spe- 
cies of  property  these  words  have  their  peculiar,  appropriate,  tech- 
nical signification,  and  the  subject  matter  determines  the  application 
to  be  made :  if  applied  to  land  they  give  an  estate  tail ;  if  to  personal 
property  an  absolute  estate;  and  although  they  be  used  in  the  same 
clause  of  a  will  and  be  applied  to  both  real  and  personal  estate,  they 
are  to  be  construed  according  to  the  subject  matter  to  which  they  are 
applied,  and  the  very  same  words  in  the  same  clause  will  be  held  to 
vest  the  one  species  of  property  absolutely,  and  the  other  in  tail. 
Cases  to  this  effect  may  be  found  in  9  Vezey  202;  6  Term  307;  16 
Johns.  413;  17  Vezey^'i79. 

On  the  trial  below  the  counsel  for  the  cleft,  objected  to  the  admis- 
sion in  evidence  of  the  proceedings  of  the  orphans'  court  of  Sussex 
county  in  relation  to  the  sale  of  the  real  estate  of  H.  Heavilo  for  the 
paying  her  debts,  and  of  the  deed  made  pursuant  to  such  sale  by  B. 
Johnson  as  executor  of  H.  Heavilo;  alledging  that  he  was  not  the 
executor  of  H.  Heavilo. 

The  sale  of  the  land  by  Johnson  had  been  returned  and  approved 
by  the  orphans'  court. 

The  order  and  decree  of  the  orphans'  court  had  not  been  appealed 
from  and  the  court  below  held  that  as  to  every  point  which  it  was 
necessary  for  the  orphans'  court  to  decide  upon,  to  make  a  rightful 
order,  their  decree  was  conclusive;  and  that  such  points  or  matters 
could  not  be  enquired  into  collaterally  in  the  action  then  on  trial. 
In  this  opinion  we  fully  concur.  To  authorize  or  order  an  executor 
or  administrator  to  sell  lands  to  pay  the  debts  of  a  deceased  person, 
was  a  jurisdiction  committed  exclusively  in  this  state  to  the  orphans* 
court  of  the  several  counties,  with  the  right  of  appeal  to  the  superior 
court;  when  the  order  in  question  was  made  the  appeal  was  to  the 
then  supreme  court.  If  one  died  leaving  a  will,  the  orphans'  court 
had  exclusively  the  power  to  call  upon  the  executor  to  account  for 
the  goods  and  chattel's  and  on  examination  and  due  proof  made  be- 
fore it,  if  the  personal  estate  should  be  found  insufficient  to  pay  the 
debts  of  the  deceased,  and  if  the  widow,  children  or  devisees  should 
neglect  or  refuse  to  pay  their  poroprtionate  shares  of  those  debts 
after  a  just  settlement  of  the  personal  estate  in  that  court,  then  to 
order  the  executor  to  sell  such  portions  of  the  estate  as  that  court 
might  deem  necessary  for  the  payment  of  debts;  which  sales  the  act 
of  assembly  declared  should  be  as  available  as  if  the  lands  had  been 
sold  by  the  decedants :  and  were  to  be  made  after  notice  by  advertise- 
ments for  twenty  days  in  the  hundred  where  the  lands  were  situate 


556  Roach  vs.  Maetin's  lessee. 

and  in  three  of  the  most  public  places  in  the  county,  and  return  of 
such  sale  was  to  be  made  to  the  next  orphans'  court.  All  these  differ- 
ent matters  are  essential  requisites  in  a  valid  decree  or  to  constitute  a 
valid  sale,  and  if  any  one  these  points  could  be  enquired  into  in  the 
action  of  ejectment  in  the  court  below,  all  were  equally  open  for  in- 
vestigation even  to  the  advertisement  of  the  lands  for  twenty  days,  and 
the  refusal  or  neglect  of  the  widow,  heirs  or  devisees  to  pay  the  debts. 
Where  sales  were  to  be  made  of  lands  of  an  intestate  it  was  further 
provided;  that  before  an  order  was  made,  the  administrator  should 
exhibit  to  the  court  an  inventory  and  appraisement  and  also  an  ac- 
count on  oath  of  the  debts  due  from  the  intestate.  These  points 
would  on  the  same  principle  be  enquirable  into.  To  order  lands 
to  be  sold  for  the  payment  of  debts,  was  a  jurisdiction  exclusively 
committed  by  our  laws  to  the  orphans'  court.  Those  laws  pre- 
scribed the  manner  in  which  the  jurisdiction  was  to  be  exercised. 
Before  that  court  could  legally  exercise  the  power  delegated,  it  was 
to  call  the  executor  before  it  to  account  for  the  goods  and  chattels — 
of  course  it  was  to  ascertain  who  was  the  executor,  and  compel  him 
to  render  such  account:  if  the  personal  estate  was  insufficient  to  pay 
the  debts,  and  if  the  heirs  or  devisees  refused  or  neglected  to  dis- 
charge them,  then  the  court  were  authorised  to  order  the  executor  to 
sell  the  land,  to  receive  a  return  of  such  sale  and  enquire  if  it  had 
been  legally  made ;  and  if  the  lands  were  those  of  an  intestate,  an  in- 
ventory, appraisement  and  list  of  debts  were  to  be  submitted  to  the 
court  before  an  order  could  be  made.  It  was  undoubtedly  necessary 
that  all  these  matters  should  be  made  out  to  the  satisfaction  of  that 
court,  before  it  could  legally  make  a  decree  to  sell  the  lands :  as  such 
an  order  was  made  by  that  court.,  are  we  not  bound  to  presume  that 
a  court  thus  having  jurisdiction  has  properly  exercised  its  power  and 
had  before  it  all  that  the  law  required  it  should  have  before  it,  pre- 
vious to  its  making  such  order.  If  these  matters  are  allowed  to  be 
controverted,  enquired  into,  or  proof  of  them  called  for,  we  should  in 
a  side  way,  and  not  by  the  legitimate  and  prescribed  course  of  appeal, 
review  the  proceedings  in  that  court,  and  impeach  the  decree  of  a 
court  of  competent  jurisdiction  in  a  collateral  action.  We  cannot 
adopt  such  a  principle.  It  has  in  it  the  seeds  of  evil,  and  would  pro 
duce  confusion  in  our  system,  collision  in  our  tribunals,  and  insecu- 
rity in  the  titles  and  tenure  of  real  estate. 

If  a  court  having  jurisdiction  of  the  subject  matter  proceeds  erro- 
neously, its  judgment  or  decree  is  nevertheless  valid  till  reversed  by 
the  appropriate  tribunal  of  review  in  the  due  course  of  law,  and  every 
person  is  bound  by  the  judicial  acts  of  such  a  court  while  they 
stand  unrepealed.  Buller's  N.  P.  244;  3  Term  129;  Cowper  315; 
1  Strange  481.  An  executor  who  has  obtained  letters  testamentary 
on  a  forged  will  represents  the  estate  until  those  letters  are  revoked, 
and  payment  made  to  him  will  discharge  the  debtor.  This  principle 
was  decided  in  the  case  from  3  Term  to  which  we  have  referred. 
Would  it  not  be  most  unreasonable,  and  be  paying  but  little  respect 
to  the  judicial  acts  of  a  court  to  whom  the  matter  has  been  by  our 
laws  exclusively  confided,  to  hold  that  a  porson  before  he  can  with 
safety  purchase  land  at  an  executor's  sale  made  under  an  order  of  our 
orphans'  court  is  bound  to  ascertain  if  satisfactory  proof  exist  that 


Roach  vs.  Martinis  lessee.  557 

such  court  has  pursued  in  all  particulars,  the  course  pointed  out  by 
law  for  the  due  exercise  of  its  authority,  and  that  all  the  requisites 
of  a  valid  sale  have  been  confirmed  to,  and  to  stand  ready  at  all  times 
to  produce  such  proof  whenever  an  individual  may  choose  to  in- 
stitute an  action  to  take  from  him  the  land  he  has  purchased  ?  Ought 
he  not  to  be  permitted  to  rest  securely  on  the  decree  and  proceedings 
of  the  court  to  whom  the  jurisdiction  was  entrusted,  as  conclusive  evi- 
dence that  such  court  has  duly  pursued  its  authority,  and  not  acted  in 
a  way  different  from  that  which  the  law  had  prescribed  that  it  should 
act. 

A  judgment,  sentence  or  decree  cannot  be  impeached  on  the  ground 
that  the  will  was  forged ;  or  that  the  testator  was  non  compos  mentis ; 
or  that  another  is  executor,  for  this  would  be  to  falsify  such  judg- 
ment or  decree.  1  Stark.  Ev.  253;  1  Strange  481.  It  was  a  ques- 
tion for  the  orphans'  court,  and  an  essential  question  for  it  to  decide, 
whether  Benjamin  Johnson,  as  executor  of  John  Heavilo,  who  was 
appointed  one  of  the  executors  of  Hannah  Heavilo,  and  gave  bond 
as  such,  was  the  executor  of  Hannah  Heavilo,  and  to  be  recognized 
as  her  legal  representative;  for  until  that  court  had  decided  that  he 
was  the  executor  it  could  make  no  decree  authorizing  him  to  make 
sale  of  the  land.  If  the  court  erred  in  judgment  either  on  the  fact 
or  law,  a  remedy  for  correction  of  the  error  was  secured  by  an  ap- 
peal to  the  supreme  court  whose  decision,  by  our  then  constitution, 
was  final.  If  the  error,  if  any  existed,  is  to  be  got  at  and  corrected 
in  this  way  in  an  action  of  ejectment,  then  the  court  of  final  resort 
is  not  that  pointed  out  by  the  constitution  for  such  correction.  It 
would  have  been,  under  our  late  judicial  systemi,  the  high  court  of 
errors  and  appeals,  in  which  not  a  single  judge  to  whom  the  consti- 
tution assigned  the  final  decision  of  such  matters,  would  have  been 
on  the  bench  on  the  final  determination  of  the  cause,  if  the  action  of 
ejectment  had  originated  in  the  supreme  court  it  would  have  been 
decided  in  the  last  resort  by  the  chancellor  and  judges  of  the  court  of 
common  pleas,  who  would  have  formed  the  court  of  appeals  on  writs 
of  error  to  the  supreme  court ;  and  under  our  present  constitution  the 
tribunal  of  final  decision  would  be  composed  of  the  chancellor,  the 
associate  judge  residing  in  the  county,  and  one  other  of  the  judges; 
and  yet  neither  of  the  former  can  sit  on  an  appeal  from  the  decree  of 
the  orphans'  court.  The  court  of  errors  and  appeals  would  thus  in 
effect,  though  indirectly,  take  to  themselves  the  power  of  review- 
ing and  annulling  the  decrees  of  the  orphans'  court,  a  power  denied 
to  it  by  our  constitution,  and  expressly  placed  elsewhere. 

The  case  of  FocJcwell  vs.  Sheldon,  (2  Dai/s  Rep.  305,)  is  an  au- 
thority on  the  question  before  us  and  sustains  the  principles  we  have 
adopted.  It  was  an  action  of  ejectment  brought  by  the  heirs  at  law, 
in  which  it  was  attempted  to  impeach  a  sale  made  by  an  executor  by 
order  of  a  court  of  probate  for  the  pa}Tnent  of  debts,  on  the  ground 
that  all  these  previous  matters  which  were  necessary  by  the  statute 
of  Connecticut  to  have  been  done  before  the  court  of  probate  could 
make  the  order  of  sale,  had  not  been  done ;  that  no  inventory  of  the 
lands  in  controversy  had  been  made,  accepted  and  recorded  as  their 
statute  required,  and  that  therefore  the  sale  was  void.  The  suprem.e 
court  of  errors  held,  that  they  were  bound  to  presume  all  these  mat- 


558  BoACH  vs.  Martin's  lessee. 

ters  to  have  existed  before  the  court  of  probate  exercised  its  dele- 
gated jurisdiction;  that  it  would  presume  the  court  of  probate  had 
before  it  the  inventory  required;  that  it  would  presume  such  inven- 
tory was  accepted  and  ordered  to  be  recorded,  and  that  they  would 
not  permit  an  averment  that  there  was  no  such  inventory,  or  that  it 
had  not  been  accepted  or  recorded,  because  as  these  were  requisites 
such  averments  would  impeach  a  decree  of  a  court  of  competent  ju- 
risdiction, and  that  such  decree  could  not  be  impeached  in  a  coUate- 
lal  action.  A  like  attempt  was  made  to  question  the  regularity  of 
the  proceedings  of  a  court  of  probate,  in  relation  to  a  sale  ordered 
for  the  payment  of  debts,  in  an  ejectment  brought  by  Griswold,  one 
of  the  heirs  of  the  deceased,  against  Bigelow,  who  held  under  the 
purchase  made  at  such  sale,  and  which  is  reported  in  6  Day  264.  C. 
J.  Ilosmer  in  delivering  the  opinion  of  the  court  said,  "  The  decrees 
of  a  court  of  competent  jurisdiction  are  conclusive  while  they  remain 
unreversed,  on  every  question  which  they  profess  to  decide.  They 
can  never  be  questioned  collaterally  but  ex  directo  only."  It  was  the 
proper  course  of  the  devisees  and  others  to  have  appealed  from  the 
appointment  of  the  administrator  and  the  order  of  sale,  and  indeed 
from  any  other  exceptional  decree  of  probate,  and  in  my  opinion 
this  was  the  only  mode  of  reviewing  any  of  those  determinations — 
from  this  it  results  as  far  as  this  court  is  authorized  to  decide,  that 
an  administrator  was  duly  appointed,  the  claim  was  legally  allowed 
and  a  lawful  order  of  sale  was  made. 

'lliat  our  views  on  this  subject  do  not  accord  with  the  decisions 
in  Pennsylvania  we  are  aware.  Their  rule  was  adopted  by  C.  J. 
M'Kean  in  1798,  probably  in  consequence  of  their  not  having  a 
distinct  equity  tribunal,  and  succeeding  judges  have  not  felt  them- 
selves at  liberty  to  depart  from  it,  although  it  is  manifest  they  were 
not  satisfied  with  it.  C.  J.  Tilghman,  in  4  Binn.  104,  says,  "If 
the  question  was  open  whether  a  decree  of  the  orphans'  court  though 
erroneous  ought  to  stand  till  reversed  by  a  regular  course  of  appeal 
and  not  to  be  questioned  in  a  collateral  way  I  should  think  it  well 
worthy  of  consideration;  but  after  the  frequent  decisions  by  which 
the  decrees  of  orphans'  courts  have  been  called  in  question  in  actions 
of  ejectment,  I  am  bound  to  consider  the  law  settled."  He  again 
says,  in  6  Binn.  491,  "  It  might  be  more  convenient  and  render  the 
law  more  uniform  if  these  proceedings  (the  orphans'  court)  were  re- 
versible only  on  appeal,  but  after  the  long  practice  it  is  too  late  to 
attempt  an  alteration.  He  yields  to  the  rule  because  it  has  been 
established  by  repeated  -  decisions  and  not  because  his  judgment  ap- 
proves it.  We  are,  however,  not  thus  fettered.  In  Larimer's 
lessee  vs.  Irwin,  C.  J.  M'Kean  decided  that  it  was  the  duty  of  a 
purchaser  at  a  sale  by  an  administrator  or  executor,  "  to  see  that  the 
proceedings  were  so  far  regular  as  to  authorize  the  sale."  We  can- 
not adopt  a  principle  like  this  which  will  take  from  the  decrees  of  an 
independent  tribunal  all  binding  force  or  effect.  Such  sales  we  think 
should  be  sustained  to  the  extent  that  sales  by  sheriff's  are,  and  that 
in  neither  case  should  purchasers  be  required  to  see  that  the  pro- 
ceedings prior  either  to  the  judgment  of  a  court  of  law,  or  to  a  de- 
cree in  the  orphans'  court  were  so  far  regular  as  to  authorize  a  sale. 
Judge  Yates  in  6  Binn.  499,  says,  I  consider  the  general  remark 


Roach  vs.  Martin's  lessee.  559 

to  be  correct,  that  the  decree  of  the  orphans'  court  in  a  case  within 
its  jurisdiction  is  reversible  only  by  appeal,  and  not  collaterally  in 
another  suit.  The  same  judge  says  in  4  Binn.  107,  in  relation  to 
sales  of  land  made  by  executors  by  order  of  the  orphans'  court  and 
also  in  relation  to  assignments  by  that  court  of  the  land  of  an  intes- 
tate to  one  or  other  of  the  children,  it  has  not  been  necessary  in 
Pennsylvania  to  appeal  in  the  first  instance  to  reverse  the  decree, 
but  to  institute  actions  of  ejectments,  and  in  this  way  review  the 
proceedings  of  the  orphans'  court.  In  this  state  such  a  course  would 
virtually  be  a  violation  of  our  constitution,  and  cannot  receive  our 
sanction. 

The  case  of  Griffith  vs.  Frazer,  from  8  C ranch,  does  not  in  our 
judgment  conflict  with  the  principle  on  which  we  proceed.  A  mor 
jority  of  the  court  ruled  in  that  case,  that  an  execution  on  the  judg- 
ment which  had  been  rendered  against  Lamotte  the  administrator 
cum  tes.  ann.  could  not  legally  be  levied  on  the  property  of  Sal- 
vador, and  therefore  that  a  title  through  it  could  not  be  conveyed  to 
the  purchaser,  because  the  judgment  was  a  nullity.  It  was  admitted 
by  C.  J.  Marshall  that  this  decision  was  at  variance  with  the  case  in 
1  "Wilson,  303.  That  the  regularity  of  an  execution  under  which  a 
sale  has  been  effected  by  a  sheriff,  can  be  inquired  into  collaterally 
in  an  action  of  ejectment,  is  a  position  we  are  not  prepared  to  admit; 
certainly  it  cannot  if  the  execution  be  voidable  onlv  and  not  void. 
1  Salk.  273;  1  Wils.  302;  8  Johns.  361;  3  Cai7ies.  271. 

The  court  of  appeals  of  South  Carolina  in  the  case  of  Ford  vs. 
Travis  (cited  8  Cranch,  14,)  had  decided  that  after  probate  made  of 
a  will,  a  grant  by  the  ordinary  of  administration  was  void,  although 
the  executor  might  be  absent  from  the  state.  It  was  established  by 
the  highest  tribunal  as  the  law  of  that  state,  that  the  ordinary  hav- 
ing taken  probate  of  a  will  or  issued  letters  testamentary  had  no 
longer  jurisdiction  over  the  subject,  but  that  it  was  exhausted,  and 
that  he  had  no  jurisdiction  while  the  executor  was  living  to  issue 
other  letters,  as  he  had  no  power  to  revoke  or  annul  the  letters  is- 
sued. This  principle  was  adopted  by  the  Supreme  Court  of  the 
United  States  in  the  case  in  8  Cranch,  and  they  declare  that  the  ad- 
ministration granted  to  Lamotte  was  granted  by  a  court  having  no 
jurisdiction  in  the  particular  case  and  was  therefore  absolutely  void. 
(Page  27,  28.)  Had  the  orphans'  court  of  Sussex  county,  after 
having  ordered  and  effected  a  sale  of  the  land  of  H.  Heavilo  through 
an  executor,  and  confirming  the  same,  subsequently  assumed  a  juris- 
diction and  a  second  time  ordered  and  effected  a  sale  of  the  same 
lands  to  pay  the  debts,  the  principle  fixed  in  8  Cranch  might  well 
be  applied ;  for  by  the  first  sale  and  its  confirmation  their  jurisdiction 
over  the  subject  matter  was  at  an  end^  and  an  attempt  again  to  exer- 
cise the  same  power  would  be  a  nullity;  an  assumption  of  jurisdic- 
tion which  they  did  not  possess.  Such  however  is  not  the  case  be- 
fore us:  by  reason  of  the  insufficiency  of  the  personal  estate  of  H. 
Heavilo  to  pay  debts,  a  sale  of  her  land  was  rendered  necessary: 
the  only  jurisdiction  to  effect  this  was  the  orphans'  court;  to  it  was 
committed  the  power  to  call  the  executor  of  H.  Heavilo  before  it,  to 
ascertain  the  necessity  of  a  sale  and  to  order  the  representative  or 
executor  to  make  a  sale:  having  jurisdiction  of  the  subject  matter. 


660  BoACH  vs.  Mabtin's  lessee. 

which  is  the  sale  of  the  land,  the  order  or  decree  of  the  court  or  the 
proceedings  consequent  thereon,  though  they  may  be  erroneous  are 
not  void;  they  may  be  voidable,  but  till  reversed  in  the  due  course 
of  review,  they  stand  with  binding  force  and  cannot  be  impeached 
collaterally.  Whether  letters  testamentary  had  been  issued  to  John 
Heavilo  alone,  or  to  John  and  Eoderick  jointly;  whether  Roderick 
survived  John  or  died  before  him ;  whether  if  he  survived  he  was  the 
executor  of  H.  Heavilo  or  had  renounced,  were  matters  necessary 
for  the  orphans'  court  to  pass  upon  to  enable  it  to  decide  whether  B. 
Johnson  as  executor  of  J.  Heavilo,  was  the  legal  representative  of  H. 
Heavilo;  and  we  are  bound  to  presume  that  the  orphans'  court  thus 
having  jurisdiction  of  the  subject  matter  of  sale,  had  satisfactory 
proof  before  it  to  justify  it  in  the  conclusion  to  whiqh  it  did  come, 
that  he  was  the  legal  representative.  If  that  court  erred  the  error 
can  be  corrected  by  appeal  only,  and  not  collaterally  in  the  manner  it 
was  attempted. 

C.  J.  Marshall  says  at  page  23  of  the  case  in  8  CrancJi,  "  tho'  let- 
ters of  administration  be  granted  to  one  not  entitled  by  law  still  the 
act  is  binding  until  annulled  by  the  competent  authority,  because 
the  ordinary  had  power  to  grant  letters  of  administration  in  the 
case."  Apply  this  principle  and  the  reason  of  the  principle  to  the 
case  before  us.  If  the  orphans'  court  order  a  sale  of  land  of  a  per- 
son deceased  to  be  made  by  one  who  it  subsequently  appears  had 
not  complied  with  all  those  requisites  which  were  necessary'  to  con- 
stitute him  legally  the  executor  of  the  deceased,  still  the  act  of  the 
court  according  to  the  principle  stated  in  the  case  of  Griffith  vs. 
Frazer  would  be  binding,  until  annulled  by  the  proper  tribunal  of 
review ;  because  that  court  had  jurisdiction  of  the  subject  matter,  that 
is  of  the  sale  of  lands  to  pay  debts,  and  had  the  power  to  order  the 
sale,  and  their  act  though  voidable  was  not  void.  The  court  below 
proceeded  on  this  principle,  that  as  the  orphans'  court  had  jurisdic- 
tion and  authority  to  order  the  sale  of  H.  Heavilo's  real  estate  to 
discharge  her  debts,  they  would  hold  its  decree  as  binding  and  not 
allow  it  to  be  impeached  collaterally  on  the  trial  then  before  it.  We 
cannot  suppose  that  the  late  court  of  common  pleas  would  have  per- 
mitted a  sale  of  lands  made  by  a  sheriff  under  process  from  the  su- 
preme court,  to  have  been  impeacehd  collaterally  in  a  trial  before  it 
by  an  averment  that  the  inquisitors  who  condemned  the  land  were 
not  freeholders,  or  that  the  sheriff  ha^  not  given  security;  and  yet 
this  question  of  security  is  one  of  which  the  common  pleas  had  ex- 
clusive jurisdiction  and  not  the  supreme  court  from  which  the  sale 
was  authorized:  the  sales  might  have  been  voidable  but  they  were 
not  void,  and  therefore  could  not  be  assailed  in  this  way. 

The  judgment  of  the  court  in  admitting  in  evidence  the  records  of 
the  deeds  which  had  not  been  recorded  within  a  year  was  we  think 
correct,  when  we  consider  the  practice  that  has  prevailed  for  very 
many  years  throughout  each  county  of  the  state  of  recording  deeds 
duly  proved  or  acknowledged  after  the  year,  and  the  decisions  made 
in  at  least  one  of  our  courts  in  allowing  office  copies  of  such  to  be  re- 
ceived in  evidence ;  we  fear  we  should  be  unsettling  the  titles  to  much 
of  the  real  property  of  the  state,  were  we  to  adopt  a  different  rule  from 
that  of  the  court  below  inasmuch  as  the  supreme  court  for  at  least 


Farmers'  Bank  vs.  Gilpin,  Bradun  et  al.  5G1 

thirty  years  had  recognized  by  their  decisions  as  competent  evi- 
dence deeds  so  recorded.  We  go  on  the  decisions  thus  made  estab- 
lishing a  rule  of  property  which  is  not  wise  now  to  shake,  and 
the  practice  that  it  gave  rise  to  or  recognized,  and  not  on  the  words 
of  the  act  of  assembly,  which  might  Avell  bear  a  different  construc- 
tion: besides  the  admission  of  deeds  thus  recorded,  or  copies  thereof 
in  evidence,  though  not  within  the  words  of  the  act  extending  the 
time  for  recording  deeds;  (8  Del.  Laws  19)  and  the  supplements 
thereto  is,  we  apprehend,  within  the  spirit  and  design  of  those  acts: 
under  those  acts  all  deeds  proved  or  acknowledged  in  the  manner 
prescribed  by  the  laws  of  the  state  could  be  recorded  and  copies 
thereof  be  evidence,  no  matter  Avhen  executed.  Had  these  deeds  been 
placed  on  record  subsequently  to  the  passing  of  those  acts,  there 
would  have  been  no  question  on  this  point:  as  they  were  recorded 
previously  thereto,  having  been  duly  proved,  we  think  the  spirit 
and  object  of  the  act  are  promoted  by  recognizing  them  as  valid  rec- 
ords. 

We  are  therefore  unanimously  of  opinion  that  in  the  judgment  of 
the  court  below  there  is  no  error,  and  that  it  must  be  affirmed. 

Judgment  affirmed. 

Bayard  and  Clayton,  for  plaintiff  in  error. 

Frame,   for  defendant   in   error. 


THE  PRESIDENT,  DIRECTORS  AND  COMPANY  of  the 
FARMERS'  BANK  of  the  STATE  OF  DELAWARE,  complain- 
ants below,  appellants,  vs.  VINCENT  GILPIN.  JOHN  F.  GIL- 
PIN, THOMAS  BRADUN,  WASHINGTON  RICE,  and  others, 
defendants  below,  respondents. 

The  indorser  of  a  note  under  protest  is  not  entitled,  even  in  equity,  to  be 
considered  a  creditor  of  the  drawer,  and  to  come  in  for  a  share  of  his  ef- 
fects under  a  jreneral  assignment  for  the  benefit  of  creditors. 

A  bill  may  be  dismissed  generally,  and  with  costs,  after  a  decree  overruling 
a  demurrer  to  it. 

A  bill  may  be  dismissed  generally  as  to  all  the  defendants,  and  with  costs, 
after  a  pro  confesso  decree  as  to  some  of  the  defendants. 

Appeal  from  Chancery.    Newcastle  county. 

Coram — Clayton,  Chief  Justice.     liohinson  and  Harrington. 

The  case  was  this: — The  Farmers'  Bank,  in  the  year  1S20  dis- 
counted two  promissory  notes,  one  for  $2000  and  the  other  for  $1030: 
drawn  and  signed  by  Joseph  Robinson  in  favor  of  Thomas  Bra- 
dun  and  by  him  endorsed  to  complainants.  These  notes  were  re- 
newed from  time  to  time  until  February  1821,  when  Bradun,  being 
about  to  leave  the  State,  addressed  a  letter  to  the  cashier  of  the  bank 
agreeing  to  stand  as  endorser  on  all  subsequent  renewals  of  said  notes 
as  fully  as  if  he  were  present  and  actually  endorsed  them.  In  this 
manner  they  were  renewed  iintil  the  15th  of  August  1821,  when 
they  were  both  included  in  one  note  for  $3000 : — and  this  was  con- 
tinued by  subsequent  renewals  until  the  28th  of  August  1822,  on 
which  day  a  note  was  drawn  by  the  said  Joseph  Robinson  for  $3000, 
in  favor  of  the  said  Thomas  Bradun  at  60  davs,  and  discounted  by 

71 


•662  Fadmers'  Bank  vs.  Gilpin,  Bradun  et  al. 

the  bank  on  his  indorsement  made  under  his  agreement  of  February 
1821.  This  note  fell  due  on  the  30th  of  October,  was  protested  for 
non-payment,  and  the  indorser  regularly  notified.  Joseph  Kobinson 
on  the  30th  of  August  1822,  made  an  assignment  to  the  defendants, 
Vincent  and  John  F.  Gilpin,  of  all  his  real  and  personal  estate,  in 
trust  to  pay  a  certain  preferred  debt  and  to  divide  the  balance 
.among  all  his  other  creditors  who  should  within  sixty  days  execute 
•a  release.  Thomas  Bradun,  being  thus  responsible  for  Robinson  on 
ills  said  endorsement  did,  by  his  attorney  in  fact  Washington  Rice, 
■execute  the  release  within  the  sixty  days,  by  which  the  complainants 
insist,  he  became  entitled  to  a  dividend  or  share  of  the  surplus  of 
]?obinson's  estate  in  the  hands  of  his  trustees  upon  the  amount  of  his 
said  liability  to  the  bank.  The  other  defendants  were  the  general 
creditors  of  Robinson,  and  who  had  signed  his  release.  The  bank 
sued  Bradun  on  his  endorsement  and  recovered  judgment  on  the 
4th  November,  1825,  for  $3543  57.  On  this  judgment  the  land  of 
Bradun  was  sold  but  yielded  nothing  applicable  to  it;  and  the  de- 
fendants, Vincent  and  John  F.  Gilpin  were  summoned  as  garnishees 
of  Bradun,  who  appeared,  and  pleaded  nulla  bona;  but  the  plaintiffs 
in  the  attachment  afterwards  suffered  a  nonsuit;  and  filed  their  bill 
insisting  that  Bradun  was  entitled  by  his  said  indorsement  and  re- 
lease to  come  in  as  a  creditor  for  a  dividend  of  Robinson's  estate  in 
the  hands  of  his  assignees;  and  that  complainants  were  entitled  in 
equity  to  stand  in  his  place.  The  bank  also  obtained  judgment  on  the 
note  against  Robinson  the  drawer;  and  issued  execution  under  which 
they  levied  from  his  subsequently  acquired  property,  the  sum  of 
$1530.  The  bill  prayed  a  discovery  and  account  of  the  trust  estate 
and  payment  out  of  it  pari  passu  with  the  other  creditors  of  Robin- 
son who  had  released. 

The  defendants  demurred  to  the  bill  generally,  and  in  November, 
1831,  the  chancellor,  (Johns,  Sen.)  made  a  decree  overruling  the 
demurrer  and  directing  an  answer. 

Vincent  and  John  F.  Gilpin,  two  of  the  defendants,  answered, 
denying  that  Bradun  was  ever  a  creditor  of  Robinson  otherwise  than 
as  endorser  or  guarantor  aforesaid,  or  that  the  release  by  Rice  as  his 
attorney,  gave  him  any  right  to  a  dividend  of  Robinson's  estate.  The 
answer  also  stated,  that  Bradun  had  never  paid  the  said  note  or  any 
part  thereof.  Washington  Rice  filed  a  separate  answer ;  and  the  other 
<iefendants,  the  creditors  of  Robinson,  not  having  answered,  the  bill 
was  taken  pro  confesso  as  to  them.  The  case  came  on  for  hearing  in 
the  summer  term,  1833,  and  the  chancellor  (Johns.  Jr.)  made  a  gen- 
oral  decree  dismissing  the  complainants'  bill  with  costs. 

From  this  decree  the  present  appeal  was  taken.  On  the  part  of  the 
appellants  it  was  contended :  First.  That  Thomas  Bradun  would  in  a 
t-ourt  of  equity  be  regarded  as  a  creditor  of  Joseph  Robinson  and  en- 
titled under  his  release  to  a  share  with  the  other  creditors  under  the 
assignment.  It  was  admitted  that  an  indorser  was  not  a  creditor 
within  the  meaning  of  the  English  bankrupt  laws,  or  under  our  at- 
•tachment  laws;  but  the  bankrupt  decisions  are  upon  positive  law  and 
do  not  proceed  on  equitable  principles.  A  court  of  equity  on  its  own 
principles  will  regard  all  as  creditors  who  have  any  right  or  claim 
either  legal  or  equitable,  fixed  or  contingent,  on  the  debtor's  estate. 


Farmers'  Bank  vs.  Gilpin,  Bradun  et  al.  563 

If  Bradun  is  entitled  as  a  creditor  of  Robinson  to  a  share  of  his  estate, 
the  bank  is  entitled  in  equity  to  all  the  rights  and  remedies  of  Bradun 
and  to  "stand  in  his  place.  Second :  That  the  interlocutory  decree 
overruling  the  demurrer  settled  this  question,  and  it  was  not  compe- 
tent for  chancellor  Johns,  Jr.  after  demurrer  overruled  to  dismiss  the 
bill  and  thus  virtually  reverse  the  decision  of  his  predecessor  with- 
out a  rehearing.  The  demurrer  brought  up  the  question  of  equity  in 
complainants'  bill,  which  necessarily  involved  the  question  whether 
Bradun  was  a  creditor  of  Robinson  and  the  decree  overruling  the  de- 
murrer, decided  this  question.  5  Simmons'  Reports  156,  Nichols  vs. 
Rows.  A  judge  is  bound  to  notice  a  prior  order  in  the  same  cause,  and 
having  decided  that  a  party  has  an  equity  he  cannot  afterwards  change 
that  decision  without  rehearing  the  case.  Third:  That  Vincent  and 
J.  F.  Gilpin  being  but  naked  trustees,  and  the  bill  having  been  taken 
pro  confesso  as  to  the  cestuis  que  trust  or  creditors  generally,  it  was 
not  competent  for  them  to  controvert  the  claim.  That  a  bill  could  not 
be  dismissed  generally  after  a  pro  confesso  decree  as  to  any  of  the 
defendants;  and  that  as  to  costs,  they  could  not  be  given  on  the  dis- 
missal of  a  bill  after  a  demurrer  overruled  as  to  all  the  defendants 
and  a  pro  confesso  decree  against  all  the  parties  in  interest. 

On  behalf  of  the  respondents  it  was  insisted:  that  the  principles 
which  test  the  character  of  a  creditor  are  the  same  in  equity  as  at  law. 
At  the  time  of  the  assignment  and  release  Bradun  was  merely  the  in- 
dorser  of  Robinson  on  a  note  then  under  protest,  but  had  suffered  no 
loss,  nor  incurred  any  liability  except  a  contingent  one.  Nor  has  he 
yet  placed  himself  in  the  condition  of  a  creditor.  He  has  paid  nothing 
for  Robinson  and  Robinson  owes  him  nothing.  2  Wash.  Cir.  Ct.  Rep. 
488;  Taylor  \s.  Gardner,  garnishee  of  Lee,  Sera.  AM.  103,  same  case. 
6  Johns.  Ch.  Rep.  285;  9  Johns.  Rep.  127;  3  iVils.  263,  ("271;^  God- 
dard  vs.  Vander  Hnyden.  Second :  That  complainants  had  adequate 
remedy  at  law  under  the  attachment  process.  Third :  A  complainant 
in  equity  must  show  that  he  has  done  equity,  or  is  willing  to  do  it. 
Is  the  bank  doing  equity  to  the  other  creditors  of  Robinson.  Refus- 
ing to  come  in  under  the  assignment  and  release,  they  proceed  at  law 
against  Robinson  and  have  already  realized  $1530  00;  whilst  they 
thrust  Bradun  forward  as  a  releasing  creditor  and  insist  upon  coming 
in  under  him  for  a  division  op.  their  whole  debt?  14  Vezey  493;  8 
Yezey  84;  16  Vezey  372;  McKensie  vs.  McKensie.  Fourth:  The  de- 
cision on  the  demurrer  did  not  preclude  the  chancellor  from  decree- 
ing a  general  dismissal  of  the  bill.  A  demurrer  in  chancery  is  very 
different  from  a  demurrer  at  law.  It  does  not  admit  the  fa  ''s.  It 
only  raises  the  question  whether  the  facts  as  stated  entitle  complain- 
ant to  an  answer.  The  overruling  a  demurrer  then  decides  nothing 
but  that  the  defendant  shall  answer.  He  may  afterwards  in  his 
answer  insist  upon  the  same  matter  which  he  set  up  by  demurrer. 
Fifth:  A  pro  confesso  decree  does  not  conclude  any  of  the  rights  of 
the  parties  on  the  merits ;  but  merely  confesses  the  facts  in  the  bill 
leaving  every  thing  arising  upon  those  facts,  as  well  as  to  liability  as 
to  costs,  subject  to  the  final  decree  of  the  chancellor.  Costs  in  equity 
do  not  in  any  case  depend  on  the  result  of  the  case  but  rest  in  the 
equitable  discretion  of  the  chancellor. 


564  Farmers'  Bank  vs.  Gilpix,  Bradun  et  al. 

Chief  Justice  Clayton  delivered  the  opinion  of  the  Court. 

Clayton,  Chief  Justice: 

On  the  28th  of  August,  1822,  Joseph  Kobinson  made  his  prorais- 
eory  note,  payable  at  sixty  days,  to  Thomas  Bradun,  for  the  sum  of 
$3009,  which  was  by  him  endorsed  and  delivered  to  the  Farmers' 
Bank  of  the  State  of  Delaware,  and  not  being  duly  paid,  it  was  pro- 
tested. Joseph  Robinson  made  and  executed  his  deed  bearing  date 
the  30th  of  August,  1822,  and  did  thereby  convey,  assign  and  trans- 
fer to  Vincent  Gilpin  and  John  F.  Gilpin,  their  heirs  and  assigns, 
all  his  real  and  personal  estate  in  trust  to  sell  and  apply  the  proceeds 
in  the  first  place  to  the  satisfaction  of  a  certain  preferred  debt,  and 
after  the  discharge  of  the  same,  to  apply  all  the  residue  of  the  pro- 
ceeds of  the  said  real  and  personal  estate,  among  all  the  other  credi- 
tors of  the  said  Joseph  Bobinson,  who  should  within  sixty  days  there- 
after, execute  a  release  to  the  said  Joseph  Bobinson  of  their  re- 
spective claims  and  demands  in  equal  proportion,  according  to  the 
amount  of  their  debts.  Thomas  Bradun,  by  his  attorney,  W.  Rice, 
did  execute  a  release  within  sixty  days.  This  bill  is  filed  by  the 
Farmers'  Bank,  to  enable  it  to  stand  in  the  place  of  Thomas  Bradun, 
and  to  have  such  benefit  imder  the  assignment  as  he  was  entitled  to. 
Judgments  were  recovered  against  the  drawer  and  endorser  of  the 
note,  and  upon  execution  process  argainst  Robinson,  the  sum  of  1530 
dollars  was  levied  upon  his  property  at  the  suit  of  the  Bank. 

The  first  question  that  arises  in  this  case  is,  was  Bradun  at  the  time 
of  the  release  executed  a  creditor  of  Robinson?  It  is  admitted  that 
there  was  no  legal  indebtedness;  but  that  equity  would  treat  him  as 
a  creditor.  We  are  to  consider  the  operation  of  his  release  at  law; 
for  if  he  released  nothing,  he  was  not  entitled  to  any  benefit  under 
the  assignment.  As  a  mere  endorser,  not  having  discharged  the  note 
at  the  time,  he  had  no  debt,  demand,  or  interest  upon  which  the  re- 
lease could  operate;  and  if  he  had  released  nothing,  if  the  creditors 
of  Robinson  derived  no  advantage  from  the  release,  he  could  not  avail 
himself  of  any  benefit  under  the  assignment.  It  would  be  unjust  to 
the  other  creditors  to  say  that  he  could.  The  Farmers'  Bank  was 
left  at  liberty  to  proceed  upon  this  note  as  the  holder  of  it;  and  it  did 
proceed,  and  collected  1530  dollars.  Its  hands  were  not  tied  by  this 
release;  it  was  left  at  liberty  to  use  every  means  in  its  power  to  col- 
lect its  debts;  and  it  used  those  means.  What  would  be  the  conse- 
quence if  the  Bank  should  prevail  in  this  case?  It  would  retain  what 
it  has  received  upon  its  execution,  and  standing  in  the  place  of 
Bradun,  supposing  his  release  to  be  operative,  it  would  get  such  share 
of  the  dividends  as  he  would  have  taken;  when  by  the  terms  of  the 
assignment  the  creditors  were  to  take  equally  in  proportion  to  their 
debts.  Robinson  was  only  indebted  at  the  time  in  3000  dollars,  and 
that  debt  was  due  to  the  Bank;  but  the  complainant  goes  upon  the 
notion  that  he  was  legallv  indebted  to  the  Bank  in  this  sum,  and  that 
he  was  equitably  indebted  to  Bradun  in  a  like  sum ;  whereas  in  truth 
he  can  only  owe  3000  dollars.  Had  Bradun  discharged  the  note  the 
Bank  would  have  been  no  longer  a  creditor;  and  Brandun  then  being 
the  creditor  might  have  released.  (Hardcastle  vs.  Commercial  BanTc^ 
ante.) 


Eaxdel,  Jk.  vs.  Garn's  of  C.  &  D.  Canal  Co.  565 

To  this  bill  there  was  a  demurrer,  and  the  demurrer  was  over- 
ruled, and  the  defts.  ordered  to  answer.  The  Gilpins,  the  trustees, 
put  in  their  answer,  and  the  creditors  not  answering,  the  bill  as  to 
them  was  taken  pro  confesso.  On  the  hearing  the  chancellor  dis- 
missed the  bill  as  to  all  parties,  and  decreed  the  complainant  to  pay 
the  cost.  On  this  ground  it  is  insisted  that  the  decree  is  erroneous ; 
that  the  bill  should  not  have  been  dismissed  as  to  those  against  whom 
it  was  taken  pro  confesso,  or  at  all  events  that  thc}^  should  have  l)een 
decreed  to  pay  costs;  because  it  is  said  that  b}'  overruling  the  de- 
murrer the  court  decides  that  on  the  facts  appearing  on  the  bill  the 
the  plfP.  has  an  equity  which,  if  the  answer  does  not  displace,  there 
must  be  a  decree  accordingly.      5  Sim.  168-9. 

But  a  demurrer  is  nothing  more  than  an  allegation  by  a  deft, 
which,  admitting  the  matters  of  fact  alledged  in  the  bill  to  be  true, 
shows  that  as  they  are  therein  set  forth,  they  are  insufficient  for  the 
plff.  to  proceed  upon,  or  oblige  the  deft,  to  answer:  it  therefore  de- 
mands the  judgment  of  the  court  whether  the  deft,  shall  be  compelled 
to.  make  answer  to  the  plff's  bill.  Mit.  PI.  97,  ct  seq.  It  is  said  by 
Lord  Hardwicke,  2  Ath.  297-8,  "If  a  man  demurs  at  law  it  is  a 
perpetual  bar  if  the  judgment  should  be  against  him ;  and  therefore  it 
is  at  his  own  peril  he  does  it;  hut  if  a  deft,  demurs  in  equity,  and 
it  is  overruled,  he  may  insist  afterwards  upon  the  same  thing  in  his 
answer."  But  a  plea  shows  some  cause  why  the  suit  should  ])e  dis- 
missed, delayed  or  barred.  Mit.  PL  97-8.  It  is  said  in  CJiit.  Dig. 
that  though  a  bill  be  taken  pro  confesso,  yet  the  plff.  must  prove  his 
charge :  2d.  vol.  889 ;  Decl-.  588.  So  a  bill  taken  pro  confesso,  and 
plff.  appearing  to  have  no  equit}',  bill  dismissed.  I)ecl\  667;  Chit. 
Dig.  889. 

In  this  case  the  trustees  answered,  and  upon  the  hearing,  the  chan- 
cellor dismissed  the  bill  with  costs.  If  the  bill  was  rightfully  dis- 
missed as  to  them,  it  manifestly  follows  that  no  decree  could  be  had 
against  the  creditors  claiming  under  the  assignment.  The  trustees 
had  all  the  funds  and  effects  in  their  hands;  and  the  creditors  could 
only  be  affected  through  them.  AVe  apprehend  that  the  overruling 
of  a  demurrer  means  nothing  more  than  that  the  deft,  shall  answer, 
and  the  trustees  having  answered  in  this  case,  we  think  that  upon 
the  hearing  the  chancellor  did  right  in  dismissing  the  bill  as  to  all 
the  defts. 

Consequently  his  decree  is  affirmed. 

J.  A.  Bayard,  for  appellants. 

Wales,  for  respondents. 


JOH^  RANDEL,  Jun'r.  vs.  EICHARD  SHOEMAKER,  garnishee 
of  THE  CHESAPEAKE  AXD  DELAWARE  CAXAL  COM- 
PANY. 

The  Same  vs.  THOMAS  P.  CROWELL,  garnishee,  &c. 

Capias  case.    The  deft,  pleads  "  nulla  bona  "  and  issue. 
Capias  case.    Same  plea  of  nulla  bona  and  issue. 


566  Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

These  cases  came  up  on  questions  of  law  reserved  by  the  superior 
court  on  the  following  statement  of  facts: 

John  Randel,  jr.  recovered  a  verdict  of  a  jury  in  the  said  court 
against  the  said  company  on  the  25th  of  January,  1834,  and  then 
and  there  obtained  judgment  in  the  said  court  against  the  said  compa- 
ny for  damages  and  costs  of  suit,  amounting  together  to  the  sum  of 
$'<i29,535  79.  The  pleadings,  record  and  proceedings  in  the  said  suit, 
from  the  declaration  to  the  judgment  inclusive,  are  referred  to  and 
form  a  part  of  this  case. 

A  writ  of  attachment  was  issued  upon  said  judgment  for  the  col- 
lection of  the  damages  and  costs  aforesaid,  on  the  6th  June,  1834, 
returnable  to  November  term  of  the  same  year.  The  said  writ  was 
served  upon  the  said  Richard  Shoemaker,  in  the  county  aforesaid,  at 
the  Delaware  Tide-lock,  who  was  summoned  by  the  sheriff  of  New- 
castle county  as  garnishee  of  the  Chesapeake  and  Delaware  Canal 
Company,  on  the  15th  of  June,  1834.  At  the  same  time  the  said 
Richard  Shoemaker  was  arrested  by  virtue  of  a  capias,  being  No. 
34,  to  November  term  of  said  court,  1834,  at  which  time  and  place 
the  said  deft,  having  appeared  and  given  bail,  and  being  put  to  plead 
at  the  election  of  the  said  plff.  under  the  said  act  of  assembly,  plead- 
ed that  he  had  no  goods,  chattels,  rights,  credits,  or  effects  of  the  said 
The  Chesapeake  and  DelaM'are  Canal  Company  in  his  hands,  custo- 
dy or  possession  at  the  time  of  the  attachment  laid,  or  at  any  time 
after.  On  this  plea  the  plaintiff  hath  joined  issue,  and  this  is  the 
question  now  submitted  to  the  court  for  their  decision. 

On  the  28th  of  January,  1834,  a  resolution  was  passed  by  the 
])oard  of  directors  of  the  canal  company,  in  the  following  words: 
'•'  Resolved,  that  hereafter  no  tolls  be  collected  on  the  line  of  the 
canal,  on  any  vessel,  cargo,  or  other  article  passing  through  the 
canal,  until  the  said  vessel,  cargo  or  other  article,  on  which  the  said 
tolls  may  be  levied  or  charged,  shall  have  entered  the  basin,  at  the 
western  ^nd  of  the  canal,  excepting  only  such  vessel,  cargo  or  other 
article  as  may  not  pass  through  the  canal  to  the  said  basin."  This 
resolution  has  never  been  printed  by  the  said  company,  nor  hath 
any  notice  whatever  thereof  been  given  to  the  said  John  Randel,  jr. 
until  this  time.  It  is  admitted  that  the  said  resolution  was  adopted 
for  the  purpose  of  preventing  the  said  John  Randel,  jr.,  from  attach- 
ing the  tolls  of  the  said  company  by  virtue  of  the  said  judgment,  or 
otherwise  availing  himself  of  the  jurisdiction  of  the  courts  of  the 
state  of  Delaware  for  the  collection  of  his  said  judgment. 

The  deft,  at  the  time  of  the  service  of  the  said  writs  of  attachment 
and  capias  upon  him,  was,  hath  ever  since  been,  and  still  continues 
to  be  the  master  of  the  sloop  Robert  and  James ;  the  said  sloop  being 
in  his  hands  and  possession  during  that  time  as  the  master  of  the 
same,  but  he  not  being  the  owner  of  the  said  vessel.  Prior  to  the 
service  of  the  said  attachment,  the  said  vessel  being  freighted  in  the 
city  of  Philadelphia  with  a  cargo  of  merchandise,  intended  to  pass 
through  the  Chesapeake  and  Delaware  canal,  from  the  Delaware  to 
the  Chesapeake;  the  said  deft,  paid  the  tolls  for  so  passing  through 
said  canal,  to  an  officer  or  agent  of  the  said  canal  company,  appoint- 
ed by  the  said  president  and  directors  to  collect  and  receive  tolls,  to 


Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co.  567 

wit;  at  the  office  of  the  said  company  in  the  city  of  Philadelphia^  to 
wit;  on  the  14th  of  June,  1834. 

The  said  attachment  and  capias  were  served  on  the  said  deft,  at 
the  time  of  his  offering  to  pass  through  the  said  canal  (at  the  Dela- 
ware tide-lock  in  Newcastle  county)  with  the  said  vessel  and  cargo, 
and  previous  to  the  vessel  passing  through  the  same;  the  said  tide- 
lock  was,  when  the  said  canal  was  opened  for  navigation  on  the  17th 
of  October,  1829,  established  by  the  president  and  directors  of  the 
said  company,  as  a  place  for  the  receipt  of  tolls  in  the  said  canal ;  and 
a  collector  of  tolls  has  always  been  appointed  to  reside  at  that  place; 
and  the  collector  of  tolls  then  at  the  said  tide-lock  permitted  the 
said  vessel  and  the  said  deft,  to  pass  through  the  said  canal,  and  the 
said  deft,  did  pass  through  the  said  canal  with  the  said  vessel  and 
cargo,  without  the  pa3'ment  of  any  other  toll.  The  tolls  for  passing 
through  the  said  canal  with  the  said  vessel  and  cargo,  at  this  time, 
amounted  to  the  sum  of  twenty-one  dollars  lawful  money  of  the 
United  States  of  America. 

The  printed  paper  hereunto  annexed,  marked  with  the  letter  A,  is 
a  true  copy  of  the  regulations  to  be  observed  by  vessels  navigating 
the  Chesapeake  and  Delaware  Canal,  adopted  by  the  board  of  direc- 
tors of  the  said  company,  with  the  rates  of  toll  for  navigating  the  said 
canal,  the  same  having  been  signed  by  the  president  and  secretary 
of  the  said  company  and  published  by  order  of  the  president  and  di- 
rectors thereof,  except  so  far  as  that  had  been  altered  by  the  resolu- 
tion of  January  28th,  above  set  forth. 

It  is  further  agreed,  that  the  said  vessel  the  said  sloop  Eobert  and 
James  (the  deft,  being  then  and  there  the  master,  and  having  the 
direction  thereof)  passed  through  the  Chesapeake  and  Delaware  Ca- 
nal with  a  cargo  from  Port  Deposit  to  Philadelphia,  on  the  18th  of 
June,  1834,  and  three  several  times  afterwards,  between  that  day 
and  the  return  day  of  the  said  writ  of  attachment.  Copies  of  the 
pass  bills  given  to  the  said  deft,  on  those  occasions,  are  hereunto  an- 
nexed. The  amount  of  tolls  on  the  several  cargoes  of  the  said  sloop, 
demanded  for  passage  through  the  said  canal,  by  the  Chesapeake  and 
Delaware  Canal  Company,  at  their  lock  at  the  western  end  of  the 
canal  in  the  state  of  Maryland,  and  there  paid  by  the  said  Eichard 
Shoemaker,  master  of  the  said  sloop,  between  the  said  18th  of  June 
and  the  return  day  of  said  writ,  was  $74  44,  lawful  money  of  the 
United  States  of  America. 

The  acts  of  the  Legislatures  of  Delaware,  Maryland  and  Pennsyl- 
vania, relative  to  the  said  The  Chesapeake  and  Delaware  Canal  Com- 
pany, and  the  several  supplements  thereto,  are  referred  to,  and  made 
part  of  this  statement  of  facts. 

It  is  agreed  that  since  the  resolution  of  January  28th,  1834,  above 
set  forth,  the  tolls  for  the  passage  of  vessels  and  their  cargoes  through 
the  Chesapeake  and  Delaware  Canal,  from  the  eastern  end  of  said 
canal,  in  the  state  of  Delaware,  to  the  western  end  thereof  in  the 
state  of  Maryland,  were  received  by  the  said  company  at  their  office 
in  the  city  of  Philadelphia,  and  were  paid  by  the  owners  or  captains, 
or  by  the  agents  of  the  said  owners  or  captains,  to  the  officers  or 
agents  of  the  said  company  at  said  office. 

It  is  further  agreed  that  independently  of  the  tolls  so  attached,  and 


568  Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

all  other  tolls  of  the  said  company  attached  by  the  said  John  Randel, 
jr.,  a  sufficient  amount  of  tolls  was  always  left  in  their  hands  not  at- 
tached, to  repair  and  keep  in  order  the  said  canal,  their  locks  and 
other  works  necessary  thereto,  and  to  keep  the  same  navigable,  also 
to  defray  the  expenses  of  the  collection  of  tolls,  including  the  sala- 
ries of  all  their  officers. 

It  is  further  agreed,  that  the  construction  of  the  said  canal  was 
commenced  on  the  15th  of  April,  1824,  and  was  completed  and  opened 
for  navigation  on  the  17th  of  October,  1829.  It  is  also  further  agreed, 
that  previous  to  the  rendition  of  the  judgment  above  named,  obtained 
by  John  Randel,  jr.,  against  the  said  canal  company,  that  the  tolls 
were  collected  in  the  canal  at  the  respective  toll-houses  located  at 
Delaware  City  and  Chesapeake  City,  from  the  captains  and  masters 
of  vessels  passing  through  the  said  canal ;  but  the  counsel  for  the  said 
defts.  protest,  that  said  captains  and  masters  were  not  personally 
liable  to  the  said  company  for  the  said  tolls  so  paid  by  them. 

If  upon  the  foregoing  issue  joined  in  this  cause  upon  the  plea  afore- 
said, the  court  shall  be  of  the  opinion  that  John  Randel,  jr.,  the 
aljove  named  plff.  is  entitled  to  judgment  against  the  deft,  as  garni- 
shee of  the  said  The  Chesapeake  and  Delaware  Canal  Company  upon 
the  plea  aforesaid  the  judgment  shall  be  entered  for  the  said  plff.  ac- 
cording to  their  opinion;  and  if  the  court  should  be  of  the  opinion 
that  the  said  John  Randel,  jr.,  is  not  entitled  to  judgment  against 
the  -said  deft,  on  the  aforesaid  statement  of  facts,  then  judgment  to  be 
entered  for  the  said  deft. 

The  statement  of  facts  in  the  case  of  Crowell  was  so  nearly  the 
same  with  the  above,  that  they  need  not  be  here  repeated. 

On  the  part  of  the  plff.  the  following  points  were  presented  for 
the  consideration  of  the  court: 

First :  There  was  not  any  such  office  as  that  of  a  collector  of  tolls  in 
Philadelphia,  and  therefore  there  was  no  such  officer  as  a  collector  of 
tolls  at  that  place  having  any  color  of  right.  His  appointment  was  a 
contempt  of  all  right. 

Second:  There  was  no  by-law  or  resolution  of  the  board  of  di- 
rectors establishing  such  an  office,  and  there  was  no  power  in  the 
board  to  make  such  a  by-law.  There  was  a  valid,  subsisting  by-law 
prohibiting  the  exercise  of  any  such  power  by  any  such  pretended 
officer. 

Third:  There  was  no  legal  payment  of  any  toll  by  the  garnishees 
in  Philadelphia.  The  pa^Tnents  made  in  Philadelphia  were  made  to 
a  void  authority,  in  fraud  of  law,  and  the  by-laws  of  the  company, 
of  the  jurisdiction  of  the  court  which  issuscd  the  attachment,  and 
of  the  rights  of  the  plaintiff. 

Fourth:  The  person  having  direction  of  a  vessel,  being  emploved 
by  others  to  pass  through  the  canal,  is  the  proper  person  to  respond 
to  the  demand  of  toll,  at  the  first  lock  passed  by  the  vessel.  If  he 
enters  the  lock  and  attempts  to  pass  without  paA-ment  there,  he  is  per- 
sonally liable  by  express  satute:  and  his  personal  liability  can  never 
be  released  by  his  own  wilful  barratry  in  exposing  the  vessel  to  for- 
feiture. In  every  view  of  the  case  whether  under  the  ninth  section 
of  the  charter,  or  the  act  of  the  31st  of  January,  1832,  the  master  is 
personally  liable  for  tolls. 


Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co.  569 

Fifth:  There  was  a  fraudulent  collusion  between  the  collector  of 
tolls  at  the  Delaware  tide-lock  and  the  defendant,  to  evade  the  charter, 
the  attachment  law  and  the  process  of  the  court,  after  the  service  of 
that  process  on  the  defendant,  and  notice  of  the  plff.'s  rights  under  it. 

Sixth:  Every  person  having  the  direction  of  a  vessel,  who  takes 
her  into  the  canal  and  passes  through  it  without  payment  of  toll  in 
the  canal,  is  guilty  of  an  attempt  to  defraud  in  the  tolls  at  the  mo- 
ment he  offers  to  pass. 

Seventh :  If  by  collusion  between  the  directors  of  the  company  and 
a  person  having  direction  of  a  vessel,  or  the  collector  at  any  place  in 
the  canal  acting  collusively  under  their  orders,  and  such  person,  any 
vessel  be  permitted  to  pass  through  the  canal  without  paying  toll 
thereon,  it  is  a  fraud  on  the  jurisdiction  of  the  courts  of  the  States 
of  Delaware  and  Maryland,  and  a  palpable  violation  of  the  charter 
which  owes  its  whole  existence  to  those  States,  and  to  no  other.  Such 
a  fraud  this  State  will  not  suffer  to  be  practiced,  for  the  purpose  of 
defeating  an  execution  creditor  suing  process  out  of  her  courts,  her 
constitution  having  provided  that  '^justice  shall  be  administered 
without  denial.'' 

Eighth:  The  courts  of  every  civilized  State  and  country,  are  the 
guardians  of  their  own  jurisdiction;  and  by  the  comity  of  nations 
it  is  settled  that  they  are  the  proper  judges  of  it.  They  are  bound 
to  protect  it. 

Ninth :  A  receipt  for  the  tolls  given  1)efore  the  service  of  the  at- 
tachment, even  by  the  collector  at  the  Delaware  tide-lock,  ivho  is  a 
legal  officer,  if  given  tvithout  'payment  of  the  tolls,  is  fraudulent  and 
void  as  against  the  attaching  creditor.  . 

Tenth :  Such  a  receipt  if  given  for  tolls  paid  elsewhere  than  in  the 
canal  is  equally  void,  as  against  such  a  creditor. 

Eleventh:  There  can  be  no  officer  de  facto,  where  there  is  no  office 
for  him  to  fill. 

Twelfth :  An  attachment  protects  a  garnishee  at  all  places  from  all 
claims  or  demands  l)y  the  original  delator  in  the  judgment,  on  which 
the  attachment  issues,  provided  those  claims  or  demands  arise  before 
the  return  of  the  attachment. 

Thirteenth:  The  directors  of  the  company  are  but  agents  of  the 
corporation. 

Fourteenth :  The  restriction  upon  the  power  of  agents  or  officers 
of  a  corporation  contained  in  the  act  of  incorporation,  every  person 
dealing  with  the  company  is  bound  to  notice ;  and  where  by  the  ex- 
press provisions  of  a  public  statute,  it  is  enacted  that  the  president 
and  directors  of  a  canal  Company  "  shall  have  power  to  enact  rules 
and  regulations  for  the  good  government  of  the  said  canal,  its  har- 
bors and  basins  and  other  appurtenances,  and  for  the  general  conve- 
nience of  vessels  navigating  the  same,  and  to  authorize  and  empoyer 
their  agents  and  officers  to  enforce  conformity  to  all  such  rules  and 
regulations  against  any  vessels  violating  the  same,  or  the  persons  in 
command  or  direction  thereof;  provided  such  rules  and  regulations 
shall  in  no  wise  contravene  the  constitution  or  laivs  of  this  State" 
—  in  that  case  if  such  rules  and  regulations  be  made  and  published  to 
the  world,  for  the  information  and  government  of  persons  trading 

72 


570  Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

through  the  canal,  all  such  persons  are  bound  to  notice  the  powers 
of,  and  restrictions  on  the  agents  of  the  company  contained  in  them. 
By  the  21st  rule  or  regulation  appended  to  the  cases  stated,  the  col- 
lector at  the  Delaware  tide-lock  was  not  only  "  fully  authorized  by 
law,"  but  also  "  required  "  to  enforce  obedience  to  the  fifth  rule  and 
regulation  requiring  payment  of  tolls  at  the  first  lock  passed  by  a 
vessel,  and  on  payment,  was  bound  to  give  the  master,  or  person  hav- 
ing the  direction  of  the  vessel,  a  receipt  or  pass  bill  for  the  tolls. 
The  attachment  was  a  payment  at  the  first  lock  passed  by  the  vessel. 

Plaintiff  refers  to  the  following  authorities  and  precedents  viz:  3 
Del.  Laws  177-8-9,  183-5-6;  Digest  85,  430,  524;  2  Dallas  381;  4 
Dallas  334-5-6-7;  Angel  and  Ames  182  to  198;  4  Cranch  241;  2 
Pickering  462 ;  5  Co.  Rep.  63,  b.  city  of  London's  Case;  8  Co.  Rep. 
253;  3  Leon.  265;  2  Kid  on  Corp.  165;  Angel  and  Ames  203;  8  Del. 
Laws  126;  4  Com.  Digest  362,  Toll.  E.;  12  Wheat.  78-79;  2  Cranch 
167,  160 ;  Bunbury  68 ;  Cro.  Eliz.  699 ;  Lntiv.  189 ;  Cro.  Jac.  552 ;  Cro. 
Eliz.  533,  775,  699;  11  Serg.  and  Rawle  411;  12  Wheat.  69-70;  6 
East  356,  to  359;  Com.  on  Con.  33;  3  T.  R.  22;  10  Coke  102;  Cro, 
Eliz.  199;  Yelverton  197;  2  Buls.  213;  Com.  on  Con.  36,  44;  3  T.  R. 
454,  172;  14  Mass.  Rep.  58;  17  Mass.  Rep.  29;  3  Peters  220;  1  Pick, 
254;  Bac.  Ab.  Wilson's  Ed.  389,  6  vol.;  Plowd.  57;  2  Buls.  187.  2  Sid. 
41 ;  3  Cov  Rep.  7 ;  ZjMass.  T.  R.  146 ;  6  Bac.  391,  393,  1  T.  R.  616  ; 
Plowd.  36,  59;  10  Mod.  117;  6  Bac.  391;  6  Peters  445;  1  Bac.  391;  2 
Lord  Raymond  934;  Abbot  on  Ship'g.  133,  156,  175,  150,  note  2; 
Abbot  on  Ship'g.  2,  195,  149,  283,  247;  Molloy,  book  2,  c  2,*-.  9,  p, 
233,  235;  Lex  Oleron  24;  Salk.  249;  3  Lev.  37;  Cowp.  143;  1  Strange 
581;  2  Lord  Raymond  ISid ;  Chitty,  Pi's.  105,  144;  2  Inst.  55,  74;  10 
i?ep.  75;  1  Bac.  392;  Salk.  415;  1  Roll's  Ab.  552,  sec.  5;  Serg.  on  At- 
tach't.  154;  15  Serg.  &  Rawle  176;  Angel  and  Ames  227,  8,  230;  3 
Wilson  297;  20  Johns.  R.  229;  5  Johns.  101;  17  rfi7/o  284;  1  Salk. 
280;  3  ^e&Zg  627 ;  Serg.  on  Aiiach't.  145,  151;  1  Com.  Digest  585;  1 
Roll's  Ab.  551;  4  Z)aZ/as  251;  Serg.  on  Attach't,  151,  153-4;  Dyer 
83  a;  1  Com.  Digest.  585;  7  Cott-en  677,  e97;Coivp.  636;  9  £'a5<  126; 
Constitution  U.  S.  art.  4  sec.  1. 

In  behalf  of  the  deft,  the  following  points  were  submitted  and  in- 
sisted upon : 

First.  That  the  deft,  is  not  indebted  to  the  canal  company  on  the 
facts  in  the  case,  and  had  no  goods,  chattels,  rights  or  credits  in  his 
hands  or  possession  belonging  to  the  company,  and  that  therefore 
judgment  must  be  rendered  in  his  favor.  1  Lord  Raymond  57.  See 
charter. 

Second.  That  where  any  debt  is  owing  by  a  garnishee,  or  any  prop- 
erty, rights  or  credits,  in  his  hands  belonging  to  the  deft,  in  the  judg- 
ment upon  which  the  attachment  is  issued,  is  so  situated  that  the 
garnishee  cannot  retain  it  against  the  will  of  the  principal,  and  also 
justify  his  conduct  by  defence  in  a  suit  at  law,  it  is  not  liable  to  at- 
tachment.   2  Mass.  Rep.  94;  3  Mass.  Rep.  121;  4  Mass.  238. 

Third.  That  the  act  of  assembly  authorizing  the  attachment  of  the 
tolls  of  The  Chesapeake  and  Delaware  Canal  Company  by  a  creditor 
who  has  obtained  judgment  against  said  company,  if  so  construed  as 
to  authorize  the  attachment  to  be  laid  in  the  hands  of  the  masters  of 
vessels  passing  through  the  canal,  would  be  a  violation  of  the  consti- 


Kandel,  Jr.  vs.  Garn's  of  C.  &  D,  Canal  Co.  571 

tution  of  the  United  States  by  impairing  the  obligation  of  a  contract, 
and  that  the  true  construction  of  the  said  act,  only  authorizes  the  at- 
tachment to  be  laid  in  the  hands  of  the  toll-gatherers  or  agents  of  said 
company.    4  Wheat.  518. 

Fourth.  That  the  construction  of  the  said  act  of  assembly  so  as  to 
authorize  an  attachment  for  tolls  to  be  laid  in  the  hands  of  masters  of 
vessels  passing  through  the  canal,  would  also  make  the  act  a  viola- 
tion of  the  constitution  of  the  United  States,  by  impairing  the  obliga- 
tion of  the  contract  between  the  States  of  Delaware,  Maryland  and 
Pennsylvania,  by  which  the  said  canal  is  declared  to  be  a  public  high- 
way. 

Fifth.  That  the  said  act  of  the  General  Assembly  authorizing  the 
attachment  of  the  tolls  of  The  Chesapeake  and  Delaware  Canal  Com- 
pany, is  unconstitutional  and  void,  because  it  violates  the  chartered 
rights  of  the  company. 

The  cases  were  argued  at' great  length  by  Clayton  and  Bogers  for 
plff.  and  Gray  and  J.  A.  Bayard  for  clefts.  The  court  took  time  to 
consider  of  it,  and  at  an  adjourned  term  in  October  — 

JoHXS,  Jr.,  Chancellor,  delivered  the  following  opinion  of  a  ma- 
jority of  the  court : 

Under  the  issue  in  the  preceding  cases  upon  the  facts  stated  and  ad- 
mitted, the  decision  of  the  question  reserved  for  the  consideration  and 
judgment  of  this  court,  depends  on  the  opinion  we  may  have  in  re- 
gard to  the  captain's  liability  to  the  canal  company  for  toll  and  the 
operation  of  the  attachment. 

The  question  relative  to  the  captain's  liability  to  pay  toll  may  be 
considered  as  it  exists  at  common  law,  and  also  as  the  same  may  be 
affected  under  the  act  incorporating  the  canal  company.  According 
to  the  common  law,  the  liabilities  of  the  captain,  appear  to  rest  upon 
principles  which  necessarily  arise  out  of  and  are  essentially  connected 
with  his  situation.  Hence  he  is  styled  the  ship's  husband,  and  as 
such,  the  law  imposes  on  him  the  relative  obligation  of  defraying  all 
the  contingent  expenses  that  may  accrue  in  the  prosecution  of  the 
voyage,  or  may  become  necessary  to  enable  the  vessel  to  arrive  at 
her  port  of  destination.  He  is  the  person  authorized  to  pay  or  pro- 
vide the  security,  and  has  his  lien  to  insure  reimbursement,  as  well 
as  his  legal  remedy,  to  recover  back  all  necessary  disbursements.  If 
without  the  means  of  pavTuent,  he  can  hypothecate  the  vessel ;  but  the 
liability  of  the  vessel  results  from  his  agency,  and  through  his  in- 
strumentality he  alone  represents  the  personal  liability,  and  hence  the 
law  imposes  on  him  the  obligation  of  defraying  such  customarv  or 
legal  pecuniary  requisitions  as  are  incurred  in  the  progress  of  the 
voyage,  and  for  the  paA-ment  of  which  it  would  be  productive  of  great 
inconvenience  to  trade,  if  the  party  abroad,  furnishing  the  neces- 
saries or  repairs,  had  to  seek  for  the  different  persons  who  might  be 
owners  of  the  vessel  or  interested  in  the  cargo.  Hence  the  rule  of  law 
establishing  the  captain's  liability  in  relation  to  matters  essential  to 
the  prosecution  of  the  voyage,  has  been  long  settled  and  is  not  now  to 
be  questioned.  Ahhot  133,  156,  150,  iwte:  1  Peters'  Adm.  223,  227; 
Cow.  636,  639;  Hen.  Bl.  116.  It  is  also  conceded,  that  for  expenses 
at  a  foreign  port,  such  as  customary  toll,  kc,  the  captain  is  liable ;  and 


572  Raxdel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

such  is  the  law  as  established  by  decisions.  But  it  has  been  contended, 
that  the  present  cases,  being  claims  for  canal  tolls,  are  not  embraced 
within  the  rule  of  the  common  law,  and  are  in  principle  distinct. 
That  which  constitutes  the  captain's  liability  we  apprehend  to  be  — 
first,  the  necessity  of  the  expenditure,  and  secondly,  that  the  same  is 
made  in  the  prosecution  of  the  voyage  and  on  account  of  the  vessel  or 
cargo.  Apply  this  rule  to  the  case  under  consideration.  The  voyage 
is  to  be  performed  from  Philadelphia  to  Baltimore,  passing  through 
the  Chesapeake  and  Delaware  Canal.  By  the  charter,  the  tolls  can 
only  be  received  or  collected  at  some  place  in  the  line  of  the  canal,  and 
in  case  of  neglect  or  refusal  to  pay,  when  the  vessel  offers  to  enter,  the 
collector  is  authorized  to  refuse  admittance ;  if  not  paid  on  entering, 
and  the  vessel  passes  witliout  payment,  then  the  vessel  is  liable  to 
seizure  and  sale.  Can  a  stronger  case  of  necessity  for  payment  exist, 
when  the  law  authorizes  the  refusal  of  entrance  on  neglect  or  refusal 
to  pay,  and  also  the  seizure  and  sale  of  the  vessel,  which  not  only  en- 
dangers the  prosecution  of  the  voyage,  but  entirely  destroys  it;  and 
does  not  the  captain  by  payment  comply  with  the  obligation  legally 
imposed,  and  in  doing  so,  act  as  well  on  account  of  the  vessel  as  her 
cargo?  But  admitting  the  captain's  liability,  to  the  extent  of  all  ex- 
penses incident  to  the  vessel,  it  is  contended  that  it  cannot  be  enlarged 
so  as  to  include  charges,  which  are  imposed  on  the  cargo ;  and  a  dis- 
tinction is  made  between  repairs  and  necessaries  for  the  ship  and  tolls 
laid  upon  the  goods.  Thus  in  the  cases  subrriitted,  it  is  alledged,  the 
act  of  incorporation  establishing  the  amount  of  toll,  charges  the  same 
upon  the  articles  of  freight,  and  not  upon  the  vessel.  This  has  been 
much  relied  on  as  exonerating  the  captain  from  liability,  and  trans- 
ferring it  to  the  merchants  or  owners  of  the  goods.  This  objection  we 
will  consider,  admitting  for  the  purpose  of  allowing  to  it  full  weight, 
that  the  goods  are  liable  to  pay  toll,  the  captain,  we  apprehend,  would 
be  bound  to  discharge  whatever  might  be  legally  demanded  during  the 
prosecution  of  the  voyage  and  even  at  its  termination.  That  he  would 
be  thus  liable,  appears  to  follow  as  a  necessary  consequence  from  his 
being  in  possession  of  the  goods,  and  more  especially,  when  by  the 
terms  of  his  contract  with  the  owners,  in  signing  the  bill  of  lading,  he 
undertakes  to  deliver  the  goods  at  their  place  of  destination  to  the  con- 
signee. That  the  goods  are  liable  for  toll  under  the  charter,  is  evi- 
dently a  misapprehension  of  the  statutory  provision ;  they  are  not  in 
the  act  of  incorporation  declared  to  be  liable  to  the  payment  of  toll,  so 
as  to  authorize  the  collector  under  any  circumstances  to  resort  to  them 
for  the  purpose  of  collecting  the  toll  imposed.  If  the  toll  be  not  paid, 
the  collector  cannot  seize  the  goods,  this  remedy  is  by  the  act  expressly 
restricted  to  the  vessel,  and  it  alone  is  lial)le  to  seizure  and  sale.  The 
law  authorizes  the  collector  to  demand  and  receive  tolls,  and  refers  to 
certain  enumerated  articles  for  the  purpose  of  fixing  the  rate  of  toll, 
not  intending  thereby  to  render  the  articles  specifically  liable  to  the 
payment  of  the  toll,  but  evidently  to  ascertain  and  regulate  the  amount 
the  collector  may  collect  or  receive,  either  from  the  person  or  vessel 
passing  through  the  canal.  If  then  the  goods  are  not  liable,  and  the 
collector  have  the  right  to  refuse  admittance  to  the  vessel  on  non-pav- 
ment,  or  after  passage  to  seize  and  sell  tlie  vessel,  then  clearlv,  the 
case  of  necessity  is  made  out  in  which,  according  to  the  principles  al- 


Kandel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co.  573 

ready  stated,  the  captain  becomes  liable  and  must  pay  for  the  purpose 
of  prosecuting  his  voyage,  and  also  of  protecting  his  vessel.  We  have 
considered  the  general  principles  which  are  involved  in  the  question 
to  be  decided,  in  reference  to  the  captain's  liability  at  common  law 
independent  of  the  charter,  and  before  we  advert  to  the  act  of  incor- 
poration, we  will  refer  to  a  decision  which  fully  sustains  the  opinion 
expressed,  in  regard  to  the  common  law  liability.  The  case  may  be 
found  in  Molloy,  p.  231,  and  in  3  Lev.  p.  37:  It  is,  The  mayor  and 
commonalty  of  London  against  Hunt,  in  the  Exchequer  Chamber; 
error  of  a  judgment  in  B.  R.  in  assumpsit  brought  by  the  mayor  and 
commonalty  against  Hunt,  wherein  they  declared  of  a  custom,  that 
they  and  their  predecessors,  mayors,  &c.,  have  had  of  every  master 
of  a  ship  eight  pence  per  ton  for  every  ton  of  cheese,  brought  from 
any  part  of  England  to  the  port  of  London  ab  oriente  de  London 
Bridge,  in  the  name  of  Aveighage,  and  the  deft,  being  master  of  a  ship 
had  brought  to  the  port  of  London  so  many  ton,  which  at  the  rate 
aforesaid,  came  to  so  much,  and  had  not  paid  it;  and  upon  non-as- 
sumpsit, verdict"  and  judgment  for  the  plaintiff.  LTpon  which  Hunt 
the  deft,  brought  a  writ  of  error,  and  two  errs  were  assigned;  first, 
that  the  action  lies  not  against  the  master,  for  the  duty  is  due  from 
the  merchants,  owners  of  the  goods;  secondly,  that  there  is  no  con- 
sideration here  for  the  duty;  for  this  is  only  in  the  nature  of  a  toll 
thorough,  which  is  not  due  without  consideration  (22  Ass.  58)  and  the 
river  is  a  common  highway.  But  the  judgment  was  affirmed;  for 
First,  the  nxaster  is  intrusted  with  the  goods;  he  hath  recompense 
from  the  merchants  for  the  portage;  he  is  responsible  for  them  and 
shall  be  charged  for  the  duty ;  and  indeed  it  would  be  infinite  to  search 
out  the  owners  of  the  several  goods;  besides,  the  goods  are  in  the  cus- 
tody of  the  master;  he  brought  them  into  port,  and  therefore  shall  be 
charged.  Secondly, the  consideration  is  sufficient,he  had  the  liberty  of 
bringing  them  into  port,  which  is  a  place  of  safety,  and  therefore  im- 
plies a  consideration  in  itself,  and  Cotton's  Bee.  678,  the  mayor  and 
commonalty  of  London  have  the  view  and  correction  of  the  river  of 
Thames  by  Stat.  E.  4,  and  Bill.  33,  34.  The  judgment  was  affirmed. 
The  next  question  to  be  considered,  relates  to  the  effect  and  opera- 
tion of  the  cause  in  the  charter,  granting  to  the  canal  company  a  sum- 
mary remedy.  It  has  been  insisted  on  in  the  argument  of  the  case, 
that  this  is  exclusive  and  precludes  the  company  from  any  remedy 
against  the  captain,  in  case  of  non-payment ;  until  by  seizure  and  sale 
of  the  vessel,  they  fail  to  obtain  the  amount  of  the  toll.  It  may  be 
well,  before  examining  the  latter  part  of  the  proposition,  to  inquire 
Avhether  the  grant  of  a  summary  power,  to  enforce  payment  of  tolls, 
excludes  the  common  law  remedy.  The  act  of  incorporation  author- 
izes the  company  to  sue  and  be  sued,  by  their  corporate  name,  and  con- 
sequently, they  are  thereby  qualified  to  avail  themselves  as  suitors  of 
every  legal  remedy,  which  may  be  necessarv  to  protect  their  interests 
or  enforce  their  rights.  Hence  we  would  infer,  that  an  omission  to 
adopt  the  summary  mode  of  collecting  the  toll,  cannot  deprive  them 
of  the  general  power  of  enforcing  payment  by  action.  Such  a  limited 
construction  of  the  act  would  be  contrary  to  the  rule  adopted  in 


574  Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

analagous  cases,  in  which  the  statutory  remedy,  being  summary,  is 
considered  accumulative,  as  in  the  law  authorizing  distress  for  rent, 
and  seizure  and  sale  for  tax,  in  all  which  and  analagous  cases,  the  rem- 
edy by  suit  is  not  taken  away,  but  still  subsists,  and  may  at  the  elec- 
tion of  the  party  interested,  be  adopted.  But  it  may  be  said  in  an- 
swer to  this  general  rule,  that  the  grant  of  summary  power  does  not 
exclude  the  common  law  remedy:  admitting  this  to  be  so,  yet  the  act 
of  incorporation  declaring  that,  "  the  person  having  the  direction  of 
such  vessel,  shall  be  liable  for  such  toll,  if  the  same  is  not  paid  by  the 
sale  of  such  vessel  as  aforesaid,  does  postpone  the  captain's  liability, 
and  consequently  the  remedy  against  him,  until  .the  company  shall 
have  seized  the  vessel,  thus  rendering  it  imperative  upon  the  company 
to  resort  to  the  vessel  as  primarily  liable,  and  therefore  on  failure  to 
seize  and  sell  the  vessel,  depriving  them  of  any  other  remedy  in  all 
cases  where  the  vessel  passes  without  paying  the  toll.  If  this  be  the 
true  construction  of  the  act  then,  instead  of  being  as  no  doubt  it  was 
intended,  the  means  of  protecting  the  interests  of  the  company  and 
enlarging  their  powers  in  collecting  toll,  the  contrary  effect  would  be 
produced;  because,  if  the  act  suspends  the  common  law  remedy  and 
ultimately  destroys  it  as  against  the  captain,  unless  and  until  the  com- 
pany have  seized  and  sold  the  vessel,  and  this  they  cannot  do  until  the 
vessel  shall  have  j^assed  the  canal ;  then  the  remedy  is  not  certain  but 
contingent,  and  should  the  seizure  of  the  vessel  be  prevented  by  any 
occurrence,  the  company  are  without  remedy.  This  right  of  seizure, 
notwithstanding  the  act  says,  "  wherever  found,"  must  necessarily  be 
limited  in  its  exercise  and  confined  within  the  jurisdiction  of  the 
states ;  granting  this  power,  it  cannot  be  exercised  beyond  the  territory 
over  which  the  right  of  legislation  exists.  Considering  as  we  do  that 
the  act  grants  accumulative  remedies,  and  is  designed  to  enlarge  the 
power  of  the  canal  company  in  collecting  their  tolls,  which  a  proper 
consideration  of  it  will,  we  think,  fully  and  unequivocally  establish, 
we  would  here  remark,  that  the  clause  "  the  person  having  the  direc- 
tion of  such  vessel  shall  l)e  liable  for  such  toll  if  the  same  is  not  paid 
by  the  sale  of  such  vessel  as  aforesaid,"  was  probably  inserted  for  the 
purpose  of  removing  all  doubt  as  to  the  continuance  of  the  captain's 
liability,  in  cases  where  the  party  electing  to  pursue  the  summary 
remedy,  by  seizure  of  the  vessel,  failed  to  obtain  payment,  and  such  a 
construction  is  in  furtherance  of  the  right  and  in  affirmance  of  the 
common  law. 

Having  thus  considered  tbe  question  as  to  the  liability  of  the  cap- 
tain at  common  law,  and  whether  the  grant  of  summary  power  to 
collect  toll,  either  suspends  or  annuls  the  remedy  by  suit,  we  shall  now 
inquire  what  is  the  true  construction  of  the  charter  upon  this  subject. 
By  the  charter,  the  corporation  are  authorized  and  required  to  collect 
and  receive  the  tolls,  at  a  place  in  the  line  of  the  canal.  The  words 
are  "  it  shall  and  ivaif  l)e  lawful  for  the  said  president  and  directors, 
after  the  said  canal  shall  be  made  navigable,  to  dmiand  and  receive 
the  following  tolls,  at  such  place  or  places  in  the  canal,  as  they  may 
hereafter  direct."  The  act  of  incorporation  thus  restricting  and  con- 
fining the  action  of  the  board  relative  to  the  place  of  demanding  and 
receiving  toll  to  the  canal,  it  necessarily  follows  that  they  cannot 


I 


Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co.  575 

legally  demand  or  receive  payment  in  any  place  out  of  the  prescribed 
limits.  The  act,  after  limiting  the  power  of  the  company,  both  as  to 
the  demand  and  receipt  of  toll  to  the  canal,  further  provides,  that  in 
csise  of  refusal  or  neglect  to  pay  the  toll  at  the  time  of  oifering  to  pass 
through  the  said  canal,  and  previous  to  the  vessel  passing  through  the 
same,  the  collectors  of  the  said  tolls  may  lawfully  refuse  passage  to 
such  vessel.  This  clause  evidently  contemplates  a  voluntary  and  not  a 
payment  by  coercion ;  it  regards  the  rights  of  the  parties  as  independ- 
ent, and  authorizes  the  collector  to  refuse  the  right  of  passage  if  the 
toll  remains  unpaid,  either  by  refusal  or  neglect.  These  expressions 
can  only  be  applicable  to  some  person,  they  cannot  be  applied  either  to 
the  vessel  or  goods,  for  it  would  be  absurd ;  they  are  necessarily  passive, 
and  cannot  either  refuse  or  neglect;  it  is  true  the  vessel  may,  after 
passage,  become  liable,  but  the  goods  under  no  circumstances  are  so; 
the  terms  used,  must  therefore,  upon  a  fair  and  reasonable  construc- 
tion, refer  to  the  person  competent  to  refuse  and  who  may  neglect ;  and 
clearly  this  is  the  proper  reference  when  we  advert  to  the  immediate 
consequence  thereof,  being  the  refusal  of  passage,  which  operates  di- 
rectly upon  the  captain,  and  deprives  him  of  the  right  to  use  the  canal 
as  a  public  highway.  Besides,  if  this  be  not  the  meaning  of  the  act, 
then  by  fixing  the  place  of  payment  in  the  canal,  and  requiring  pay- 
ment at  the  time  of  offering  to  pass,  unless  the  obligation  to  pay  rests 
upon  the  captain,  none  being  imposed  upon  the  vessel  primarily,  it 
would  appear  wrong,  as  the  canal  is  declared  a  public  highway,  to  de- 
prive him  of  the  right  of  passage  when  he  is  incapable  of  being  guilty 
either  of  neglect  or  refusal.  But  he  is  the  person  really  and  sub- 
stantially interested  in  the  right  of  passage,  and  the  liability  to  pay 
rests  with  him,  as  the  carrier  and  possessor  of  the  goods,  and  it  does 
appear  impossible  to  transfer  the  same  to  the  owners  of  the  goods,  so 
as  to  make  them  answerable  to  the  canal  company  for  the  tolls.  It 
may  be  shown  that  the  master  signs  all  the  bills  of  landing  by  which 
he  undertakes  to  deliver  the  goods  at  their  destined  port.  If  goods  be 
shipped  at  Philadelphia  to  be  delivered  at  Baltimore,  via  the  canal,  the 
tolls  form  a  part  of  the  freight  and  increase  its  price;  and  the  pay- 
ment of  the  tolls  being  an  expense,  necessarily  incident  to  the  voyage, 
and  as  the  captain  cannot  complete  the  voyage  without  paying  them, 
it  seems  impossible  to  say,  unless  you  suffer  him  to  violate  his  contract, 
that  he  is  not  bound  to  pay  them,  nor  without  it  could  he  earn  his 
freight. 

After  the  clause  operating  at  the  time  the  vessel  offers  to  pass  and  in 
passing,  follows  the  provision  relative  to  the  rights  of  the  company  and 
their  remedy,  after  the  vessel  shall  have  passed  without  paying  toll. 
The  words  of  the  act  are  as  follows :  "  and  if  any  vessel  shall  pass 
without  paying  the  said  toll,  then  the  said  collectors  may  seize  such 
vessel  wherever  found,  and  sell  the  same  at  auction  for  ready  money, 
which  so  far  as  is  necessary  shall  be  applied  towards  paying  said  toll, 
and  all  expenses  of  seizure  and  sale,  and  the  balance  if  any  shall  be 
paid  to  the  owner,  and  the  person  having  the  direction  of  such  vessel 
shall  be  liable  for  such  toll  if  the  same  is  not  paid  by  the  sale  of  such 
vessel  as  aforesaid." 

The  above  clause  has  been  insisted  on  as  exempting  the  captain  from 


576  Randel,  Jr.  vs.  Garn's  of  C.  &  D.  Canal  Co. 

liability,  until  after  the  company  have  seized  and  sold  the  vessel,  hence, 
making  the  liability  of  the  captain  conditional  and  secondary,  and  not 
original  or  primary.  This  construction  of  the  clause  will  require  the 
word  may  to  be  erased,  for  it  evidently  confers  the  power  to  do  or  not 
to  do  the  act  authorized,  and  implies  the  right  of  election.  Hence,  as 
the  legislature  have  said,  the  company  may  seize  and  sell  the  vessel, 
we  infer,  if  they  refrain  from  collecting  the  toll  by  seizure  and  sale 
of  vessel,  the  right  and  remedy  against  the  captain  remains  perfect 
and  unimpaired.  Had  the  intention  been  to  make  the  captain  liable 
for  any  deficiency,  the  phraseology  should  have  been  different;  the 
language  adopted  is  such  as  to  imply,  that  in  case  of  sale  the  value  of 
the  vessel  would  exceed  the  amount  of  toll  and  expenses,  since  it  is 
provided  that  the  balance,  if  any,  shall  be  paid  to  the  owner,  and  the 
liability  of  the  person  having  direction  is  not  declared  to  be  such,  as 
to  make  him  responsible  for  any  deficiency,  but  without  reference  to 
the  amount  received  from  the  sale,  and  upon  the  non  payment  of  toll 
by  sale,  he  is  liable:  the  intention  manifestly  being,  to  continue  the 
pre-existing  liability  of  the  captain,  unless  payment  is  obtained,  by 
the  seizure  and  sale  of  the  vessel,  and  to  preclude  him  from  any  de- 
fence against  the  claim  of  the  company,  unless  he  can  show  payment. 

The  construction  we  have  given  that  part  of  the  act  of  incorporation 
relative  to  toll,  as  connected  with  the  captain's  liabilitv,  appears  to  us, 
in  accordance  with  the  common  law  principles,  and  altogether  con- 
sistent with,  and  we  may  add,  essential  to  the  preservation  of  the 
rights  of  the  canal  company.  It  fully  recognizes  the  common  law  ob- 
ligation of  the  captain,  and  retains  to  the  company  their  several  rem- 
edies, as  separate,  distinct  and  accumulative,  thereby  affording  the 
means  of  enforcing  payment  of  toll,  either  by  suit  or  by  the  summary 
mode  of  proceeding  in  rem  as  prescribed  by  the  charter.  That  the 
legislature  should  thus  grant  the  summary  power,  and  not  desigrn 
thereby  to  impair  any  common  law  remedy  or  liability,  is  further  evi- 
dent from  the  circumstance  of  the  canal  being  declared  a  public 
highway,  which  had  it  not  been  controlled  by  vesting  in  the  company 
authority  to  demand  and  receive  toll  prior  to  the  exercise  of  the  right 
of  passage,  would  have  occasioned  much  loss  and  difficulty  in  obtain- 
ing payment. 

If  the  construction  we  have  given  the  charter  be  correct,  then  the 
case  stated,  admitting  no  payment  of  toll  at  the  time  of  entering  or 
whilst  passing,  nor  by  the  sale  of  the  vessel,  it  necessarily  follows  the 
captain  is  liable,  and  to  the  amount  of  the  sum  due  for  tolls,  is  in- 
debted to  the  canal  company;  and  hence  under  the  attachment  law 
dated  March  24,  1770,  sec.  18  (See  Dig.  Del.  Laws  51)  the  plff.  in  the 
attachment  would  be  entitled  to  judgment. 

Having  thus  considered  the  captain's  liability  to  pay  toll  as  primary 
and  not  dependent  on  the  seizure  and  sale  of  the  vessel ;  and  also  the 
judgment  creditor's  right  to  attach  tolls  due  and  unpaid  when  pay- 
ment thereof  has  not  been  made  in  manner  and  place  as  prescribed  by 
the  charter,  we  will  now  advert  to  that  part  of  the  case  which  the  argu- 
ment and  not  the  case  stated  has  presented  under  the  act  of  1829, 
entitled  "  An  act  for  expediting  suits  against  corporations."  Sec.  4. 
Dig.  Del.  Laws  98. 


Eandel,  Jk.  vs.  Gaen's  of  C.  &  D.  Canal  Co.  577 

It  has  been  insisted  on  that  tolls  are  not  liable  to  attachment.  With 
respect  to  tolls  due  and  unpaid,  our  opinion  has  been  declared,  that 
they  are  subject  under  the  act  of  1770.  And  by  the  act  of  1829,  au- 
thorizing the  judgment  creditor  after  sixty  days  to  attach  the  tolls  due 
or  to  become  due  of  said  corapan}^,  it  may  be  said  the  legislative  pro- 
vision is  express  and  ita  lex  scripta  est.  But  it  has  been  objected  that 
this  act  of  1829,  is  unconstitutional,  inasmuch  as  it  violates  the  clause 
in  the  tenth  section  of  the  first  art.  of  the  constitution  of  the  United 
States  which  declares  that  "  no  State  shall  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts."  Is 
it  ex  post  facto,  that  phrase  in  the  constitution  of  the  U.  States  is  only 
applicable  to  such  laws  as  relate  retrospectively  to  crimes,  pains  and 
penalties,  Colder  vs.  Bull,  in  Sup.  C.  U.  States,  3  Dall.  386.  Is  it 
then  a  law  impairing  the  obligation  of  contracts  ?  It  has  been  alledged 
that  it  is  by  affecting  the  chartered  rights  of  the  company;  which,  it 
has  been  contended,  being  a  grant  from  the  legislature,  is  a  contract; 
if  then  it  is  a  violation  of  the  charter  of  the  canal  company,  it  must 
be  by  repealing  some  part  thereof,  either  expressly  or  by  implication : 
there  is  no  repeal  by  express  terms,  nor  can  any  be  inferred :  the  pow- 
ers and  rights  of  the  company  under  the  charter  are  the  same  now  as 
prior  to  the  act  of  1829 ;  and  as  to  their  contracts,  certainly  they  can- 
not be  impaired  by  a  law  purely  remedial,  and  designed  to  enforce  the 
performance  of  contracts  entered  into  by  the  company  under  their 
charter.  Besides,  the  act  of  1829  does  not  enlarge  the  obligations  of 
the  company,  nor  affect  property  or  rights  which  by  legislative  grant 
were  exempt,  but  rather  the  reverse,  for  if  we  advert  to  the  original 
act  incorporating  The  Chesapeake  and  Delaware  Canal  Company,  it 
will  appear  the  tolls  are  declared  liable.  In  the  case  of  Stoddard  vs. 
Smith,  5  Binn.  page  358,  Duponceau  in  argument  remarked,  "the 
remedy  is  no  part  of  the  contract.  Every  legislature  must  add,  alter 
or  take  away  remedies  to  suit  the  public  convenience."  Tilghman 
C.  J.  in  delivering  his  opinion,  page  364,  remarks:  It  is  said,  by  this 
law,  the  obligation  of  the  contract  is  impaired.  If  the  law  took  effect 
before  the  contract,  the  objection  vanishes.  At  present  we  are  not 
satisfied  on  this  point,  nor  are  we  satisfied  that  even  if  the  contract 
preceded  the  law,  its  obligation  is  impaired  by  it.  Every  thing  stands 
precisely  as  agreed  on,  but  in  case  of  default  a  summary  remedy  is 
given. 

Yates,  J.  "  The  obligation  of  the  contract  on  either  side  was  wholly 
unimpaired,  each  stood  bound  to  perform  their  stipulated  engage- 
ments. What  change  then  did  the  law  profess  to  introduce  ?  None 
whatever,  but  the  simple  one  of  accelerating  the  remedy.  Private 
rights  are  preserved,  but  a  remedy  for  a  wrong  is  to  be  administered. 
In  this  I  cannot  see  any  violation  of  the  constitution." 

In  lake  manner  in  the  case  under  consideration,  it  may  be  asked, 
have  the  legislature  done  more  than  to  extend  the  remedy?  We  ap- 
prehend they  have  not,  and  that  unless  it  be  unconstitutional  to  en- 
force by  legislative  enactments  the  payments  of  debts,  the  law  of 
1829,  cannot  be  considered  a  violation  of  the  constitution  of  the 
United  States.  Independent  of  the  act  authorizing  the  creditor  to 
attach  the  tolls  due  or  to  become  due,  pa3Tnent  at  the  time  of  offer- 
ing to  enter  the  canal,  might  have  been  considered  a  purchase  of  the 


678  Handel,  Je.  vs.  Gabn's  of  C.  &  D.  Canal  Co. 

right  of  passage,  and  being  made  prior  to  the  engagement  of  the 
right,  no  indebtedness  would  have  existed,  and  hence  the  attachment 
would  not  have  been  available  with  respect  to  the  tolls  accruing. 

In  the  cases  submitted,  no  question  of  this  kind  is  presented,  as 
it  is  admitted,  the  tolls  were  not  paid  at  the  time  of  offering  to 
enter,  or  prior  to  the  attachment  being  laid  in  the  hands  of  the  cap- 
tains, in  manner  as  prescribed  by  the  charter.  But,  supposing  the 
captains,  after  service  of  the  attachment,  and  before  entering  the 
canal,  had,  at  the  time  of  offering  to  enter,  paid  the  tolls,  it  would 
not  have  been  available,  because,  the  supplemental  act,  authorizing 
the  attachment  of  the  tolls,  was  intended  to  operate,  upon  the  thing 
described  and  designated  as  toll  before  payment,  and  even  before  the 
same  became  due,  the  words  of  the  act  being  "  tolls  due  and  to  be- 
come due".  It  is  therefore  essential,  if  the  supplemental  act  is  to 
have  effect  to  give  it  such  a  construction  as  will  attach  the  sum  to  be 
paid  at  the  time,  when  the  liability  to  pay  the  same  arises  and  the 
party  to  whom  the  payment  is  to  be  made,  has  the  legal  right  to 
make  the  demand.  The  charter  has  fixed  the  time  and  place,  and 
hence,  we  consider,  that  whenever  the  creditor,  at  the  time  the  lia- 
bility to  pay  toll  arises,  interposes  the  writ  of  attachment,  he  there- 
by legally  suspends  the  right  to  pay  or  receive  and  has  a  right  to  the 
same  according  to  the  principles  of  the  attachment  law.  It  has  been 
in  the  argument  insisted,  that  such  a  construction  imposes  much 
hardship  and  inconvenience  on  those  engaged  in  trade;  the  answer 
to  this  is,  that  the  inconvenience  is  not  properly  chargeable  upon  the 
creditor  seeking  to  enforce  pajonent,  but  upon  the  debtor  whose  de- 
fault and  omission  to  pay  his  debts  occasions  all  the  difl&culty  and 
inconvenience. 

Judgment  for  plaintiff. 

Clayton  and  Rogers,  for  plaintiff. 

Gray  and  J.  A.  Bayard,  for  defendants. 


INDEX. 


ADMINISTRATOR. 

What  will  make  one  liable  as  administrator  de  son  tort  when  there  is  a 
rightful  executor.  State,  use  of  St.  Peter's  Church  v.  Larkins'  executors, 
120. 

A  promise  by  an  administrator  will  revive  a  debt  barred  by  limitation. 
Bennington  v.  Parkin's  administrator,  128. 

Goods  of  the  deceased  remaining  in  specie  are  liable  to  be  taken  in  exe- 
cution, unless  they  have  been  administered  in  whole  or  in  part  by  the 
payment  of  debts.    Adams'  administrator  v.  Burton,  sheriff,  138. 

AGENT. 

The  acts  of  an  agent  in  the  general  course  of  his  employment  are  evi- 
dence against  his  principal,  Avithout  proof  that  they  were  done  by  his 
orders.    Waples  et  al.  v.  Waples,  474. 

The  directions  of  an  agent  of  a  company  in  relation  to  their  business, 
and  his  declarations  at  the  time  of  giving  such  orders  in  relation  thereto, 
or  to  their  business  generally,  being  part  of  the  res  gesta,  are  evidence 
against  the  company ;  but  his  general  declarations,  conversation,  or  letters 
not  immediately  connected  with  or  growing  out  of  the  discharge  of  his 
agency,  are  not  evidence.  Bandel  v.  The  Ches.  &  Del.  Canal  Company, 
234. 

And  the  nature  of  his  agency,  and  its  extent,  may  be  inferred  from 
facts  and  the  connexion  of  his  acts  with  the  business   in  which  he  is- 
employed.    Ibid.,  234. 

AMENDMENTS. 

Pleadings  are  amendable  in  the  discretion  of  the  court  at  any  time 
before  judgment.    State,  use  of  Godxcin  v.  Collins,  et  al.,  216. 

The  distinction  between  pleadings  in  paper  and  of  record  is  not  ap- 
plicable to  our  practice.    Ibid.,  216. 

The  object  of  pleadings  is  to  present  clearly  the  points  in  dispute,  and  to 
give  notice  of  what  is  to  be  tried,  so  that  justice  may  be  done.    Ibid.,  216. 

And  where  this  object  cannot  be  effected  without  altering  the  plead- 
ings, amendments  are  at  all  times  allowable  in  the  discretion  of  the  court. 
Ibid.,  216. 

ANNUITY. 

Interest  may  be  recovered  on  the  arrears  of  an  annuity  given  in  lieu  of 
dower.    Beeson's  ex'r.  v.  Beeson's  adm'r.,  106. 

APPRENTICES. 

Forms  of  indentures  of  —  Note  to  Davis'  case,  18. 


580  IXDEX. 

ASSAULT  AND  BATTERY. 

The  defence  of  possession,  how  far  an  excuse  in  an  action  of  assault  and 
battery.    M'Dermott  v.  Kennedy,  143. 

If  one  order  another  out  of  his  house  he  is  bound  to  go;  and,  if  he  re- 
fuse, the  necessary  force  may  be  lawfully  used  to  put  him  out.    Ibid.,  143. 

A  false  imprisonment  does  not  necessarily  include  an  assault  and  bat- 
tery.   Murphy  v.  Count ixs,  143. 

ASSUMPSIT. 

Indebitatus  assumpsit  will  not  lie  by  the  administrator  of  tenant  for 
life  for  an  apportionment  of  the  rent.  Plaintiff  must  declare  specially. 
Harris'  ex'r.  v.  Vickers,  6. 

Assumpsit  will  lie  for  a  fee  due  to  counsel.     Stevens  v.  Monges,  127. 

If  money  be  placed  in  A.'s  hands  by  B.  to  pay  his  debt  to  C,  he  is  liable 
to  C.  in  assumpsit:  but  cannot  be  attached  as  the  garnishee  of  B. 
Farmers'  Bank  v.  Stidham's  garnishee,  303. 

Assumpsit  is  a  very  liberal  form  of  action,  and  will  lie  to  recover  back 
money  paid  to  a  trustee  for  a  specific  purpose,  if  it  has  not  been  applied 
to  that  purpose,  and  he  promises  to  refund  it.    Outhrie  v.  Hyatt,  446. 

ATTACHMENT. 

If  money  be  placed  in  A.'s  hands  by  B.  to  pay  his  debt  to  C,  he  is  liable 
to  C.  in  assumpsit,  but  cannot  be  attached  as  the  garnishee  of  B. 
Farmers'  Bank  v.  Stidham's  garnishee,  330. 

The  payee  of  a  note  cannot  endorse  it  over  after  it  has  been  attached 
in  the  drawer's  hands.    Robinson  v.  Mitchell  d  Quinn,  365. 

A  wife's  chose  in  action  is  liable  to  be  attached  for  the  debt  of  her  hus- 
band.   Johnson  v.  Green's  garnishee,  442. 

On  attachment  against  an  absconding  debtor  there  need  not  be  a  second 
appraisement.    Donely  v.  M'Orann  &  M'Clay,  453. 

The  tolls  of  the  Chesapeake  and  Delaware  Canal  Company  are  liable 
to  attachment  in  the  hands  of  the  masters  of  vessels  passing  through  the 
canal.    Randel  v.  Shoemaker,  garnishee,  365. 

AWARDS. 

Chancery  has  jurisdiction  to  inquire  into  awards,  though  made  on  a 
reference  in  a  court  of  law,  on  the  ground  of  fraud  on  the  referees  discov- 
ered after  judgment  on  the  award.     Waples'  adm'r.  v.  Waples  et  al.,  392. 

Judgments  on  awards  are  as  obligatory  as  judgments  after  verdict. 
Ibid.,  392. 

BAIL. 

To  declare  in  a  different  form  of  action  from  that  in  which  bail  is 
taken  releases  the  bail.     Waples  v.  Derrickson,  134, 

Special  bail  relieved  when  the  principal  has  been  discharged  under 
insolvent  law.     Bailey  v.  Seal's  special  bail,  367,  466. 

Bail  to  the  sheriff  let  in  to  defend  the  original  action  after  judgment 
by  default  against  his  principal,  and  also  judgment  by  default  against 
himself.     Outhrie  v.  Robinson,  368. 

BREACH. 

See  Pleaoiko. 

BY-LAW. 

A  by-law  of  a  bank,  giving  it  a  lien  on  stock  for  the  debts  of  the  holder, 
is  valid.    M'Dowell  v.  Bank  of  Wilmington  d  Brandywine,  27. 


I 


INDEX.  581 

CERTTORAET. 

The  adjournment  of  a  cause  by  a  Justice  of  the  Peace  must  be  to  a 
certain  day,  and  not  indefinitely.     Jaques  v.  Rice,  33. 

And  the  record  must  show  regular  adjournments,  495. 

A  return  of  "  served  by  copy  "  to  a  summons  is  not  sufficient,  33. 

The  return  must  shoAV  the  mode  of  serving  precisely,  452. 

If  constable  take  the  body  to  prison,  he  must  leave  a  certified  copy  of 
the  execution  to  authorize  the  prisoner's  detention.     Crozier's  case,  33. 

Justices  must  certify  in  the  record  the  qualification  of  referees.  Moon's 
use  V.  Ball,  106. 

If  referees  report  against  a  defendant  not  regularly  a  party  in  the 
cause,  the  report  as  to  him  is  a  nullity,  and  no  judgment  can  be  rendered 
upon  it;  but  it  will  not  vitiate  the  report  as  to  the  other  parties.  Davis 
V.  Denning  et  al.,  225. 

A  justice  cannot  refer  a  cause  but  on  the  application  of  a  party. 
Xetcbold  V.  Polk,  335. 

Justices  have  not  the  power  to  take  confessions  of  judgment  without 
previous  proceedings,  except  in  the  case  of  a  judgment  note.  Morrison 
V.  Wil.  d  Kennet  Turnpike  Co.,  366. 

On  a  judgment  by  default  the  justice  must  state  that  it  was  after 
hearing  the  proofs  and  allegations  of  the  plaintiff,  unless  it  otherwise 
appear  from  the  record  that  he  did  so.     Colesberry  v.  Stoops,  448,  494. 

Every  suretyship  before  a  justice  must  be  signed,  452. 

The  summons  must  state  the  place  of  meeting  with  certainty,  494. 

Form  of  judgment  by  default,  495. 

A  fieri  facias  cannot  issue  on  a  judgment  after  the  death  of  defendant 
without  a  scire,  facias.     Cooper  v.  May,  18. 

It  seems  that  a  judgment  may  be  kept  alive  by  a  fieri  facias  issued 
within  the  year,  and  by  regular  continuances  by  vice  comes  afterwards 
as  against  the  original  party.    Ibid.,  18. 

Service  of  original  process  must  be  at  least  four  days  before  the  re- 
turn, exclusive  of  the  day  of  service  and  return.  Robinson  v.  ColUngs 
et  al,  498. 

On  execution  attachment  the  garnishees  must  be  summoned  to  appear  at 
the  return  of  the  execution.     M'Clay  v.  Houston's  adm'r.,  529. 

Justices  of  the  peace  have  jurisdiction  only  of  such  cases  of  trespass  as 
are  for  direct  and  immediate  injuries  to  property.  Hawthorne  v.  M'Guire, 
530. 

On  a  certiorari  the  justice  need  not  send  up  matters  of  evidence.  Kizer 
V.  Downey,  530. 

If  a  freeholder  be  arrested  on  a  capiat  he  must  object  to  it  before  going 
into  a  trial,  or  it  will  not  vitiate  the  judgment.    Ibid.,  530. 

CHANCERY. 

Equity  will  distinguish  between  principal  and  surety,  though  the  na- 
ture of  the  security  be  such  as  to  make  them  all  principals  in  a  court  of 
law.    M'Dowell  v.  Bank,  369. 

Under  peculiar  circumstances  a  court  of  equity  will  assess  damages,  or 
send  an  issue  to  law  to  have  them  assessed.    Ibid.,  369. 

Chancery  has  jurisdiction  to  inquire  into  awards  though  made  on  a  ref- 
erence in  a  court  of  law,  on  the  ground  of  fraud  on  the  referees  discov- 
ered after  judgment  on  the  award.    Waples'  adm'x.  v.  Waples  et  al.,  392. 

The  chancellor  has  not  the  power  to  appoint  a  master  in  chancery. 
Reybold  v.  Dodd's  adm'r.,  401. 

The  chancellor  mav  direct  an  issue  at  any  time  before  final  hearing. 
Ibid.,  401. 

On  a  bill  for  an  account  of  partnership  transactions  an  interlocutory 
decree  to  account  is  decisive  of  the  existence  of  a  partnership,  but  not 
of  its  extent  or  terms.    Ibid.,  401. 


582  INDEX. 

CHANCERY. 

If  a  partnership  be  established  it  is  prima  facie  one  of  equal  interests. 
Ibid.,  401. 

The  court  will  not  decree  a  division  of  subsequent  profits  after  the  dis- 
solution of  a  partnership,  merely  because  the  withdrawing  partner's  share 
of  the  profits  already  accrued  are  not  paid  over  to  him.    Ibtd.,  401. 

One  partner  is  not  entitled  to  compensation  for  his  attention  to  the 
business  without  a  special  contract  to  that  effect.     Ibid.,  401. 

The  ground  on  which  equity  compels  specific  performance  of  parol  agree- 
ments concerning  lands  is  the  prevention  of  fraud.  Carlisle  et  al.  v. 
Fleming  et  al.,  421. 

When  part  performance  is  relied  on  as  taking  a  case  out  of  the  stat. 
frauds,  the  acts  must  be  unequivocally  in  execution  of  the  agreement. 
Ibid.,  421. 

And  the  terms  of  the  agreement  must  be  clearly  proved.     Ibid.,  421. 

On  a  promise  by  a  father  to  one  of  his  sons,  that  if  he,  the  son,  would 
continue  with  him,  he  would  leave  him  the  farm  at  his  death,  the  court 
refused  to  decree  a  specific  execution  against  the  heirs  at  law,  on  the 
ground  of  an  agreement  performed  by  the  son.    Ibid.,  421. 

Can  trust  money  be  followed  into  land  upon  evidence,  as  against  judg- 
ment creditors.    Quere?    Roberts  v.  Broom  et  al.,  67. 

When  the  conveyance  is  to  a  trustee  without  noticing  the  trust,  the 
application  of  the  trust  fund  should  be  clearly  proved.    Ibid,,  57. 

How  far  a  vendor  has  a  lien  on  the  land  for  his  purchase  money,  and 
against  whom.    Budd  et  al.  v.  Busti  et  al.,  69. 

Payment  of  a  substantial  part  of  the  purchase  money  is  such  a  part 
performance  of  a  parol  agreement  for  the  sale  of  land  as  will  take  the 
case  out  of  the  stat.  frauds,  and  a  court  of  equity  will  decree  a  specific 
execution  of  the  agreement.     Townsend  v.  Houston,  532. 

The  payment  must  be  clearly  made  and  accepted  in  execution  of  the 
agreement.     Ibid.,  532. 

The  indorser  of  a  note  under  protest  is  not  entitled,  even  in  equity,  to 
be  considered  a  creditor  of  the  drawer,  and  to  come  in  for  a  share  of  his 
effects  under  a  general  assignment  for  the  benefit  of  creditors.  Farmers^ 
Bank  v.  Oilpin  et  al.,  561. 

CONSTABLE. 

A  constable  is  bound  to  use  reasonable  diligence  in  the  execution  of 
process.     State,  use  of  Jewell  v.  Porter,  126. 

What  is  due  diligence  in  making  a  levy.    Ibid.,  126. 

COVENANT. 

A  covenant  for  the  forthcoming  of  goods  to  be  levied  on  at  the  suit  of 
A.  is  broken  by  causing  them  to  be  levied  on  in  the  meantime  at  the  suit 
of  the  covenantor.     Whiteman  v.  Slack,  144. 

Any  agreement  under  seal  is  a  covenant.  Randel  v.  The  Ches.  d  Dela- 
ware Canal  Company,  151,  233. 

The  language  of  a  covenant  is  to  be  applied  to  the  party  to  whom  it 
reasonably  belongs.     Ibid.,  151,  233. 

The  whole  contract  is  to  be  taken  together,  and  that  construction  pre- 
ferred which  will  give  effect  to  the  whole.     Ibid.,  151. 

If  there  be  ambiguity  it  is  to  be  taken  most  strongly  against  the  cove- 
nantor.    Ibid..  151. 

And  even  where  the  language  is  that  of  the  covenantor,  it  will  be  ap- 
plied to  the  other  party  if  the  intent  so  require  it.     Ibid.,  233. 

In  covenant  the  damages  are  merely  compensatory  or  remunerative, 
and  cannot  be  exemplary.     Ibid.,  234. 


INDEX.  583 


COVENANT. 


Covenant  will  lie  before  a  justice  of  the  peace  in  some  cases.     Coles- 
terry  v.  Stoops,  448. 


CUSTOir. 


It  seems  the  incoming  tenant  has  a  right  to  fill  the  ice-house  before  his 
term  commences,  from  necessity  and  custom.  State,  use  of  Thompson  v. 
M'Clay  et  ah,  520. 

A  particular  custom  must  be  pleaded;  a  general  custom  will  be  judi- 
cially noticed.     Templeman  v.  Buidle,  522. 

The  way  going  tenant  is  entitled  to  the  wheat  crop  by  the  general  cus- 
tom of  this  state;  not  so  of  the  oat  crop.     Ibid.,  522. 

DECEIT. 

In  an  action  on  the  case  for  recommending  a  person  as  fit  to  be  trusted 
when  in  fact  he  was  insolvent,  the  knowledge  of  his  insolvency  as  well 
as  the  fraudulent  intent  must  be  proved.    Fooks  v.  Waples,  131. 

DEED. 

A  deed  takes  effect  from  the  delivery.    Crawford  d  Co.  v.  Slack,  122. 

DEMAND. 

If  a  note  is  payable  at  a  certain  place,  demand  at  the  place  must  be 
averred.     Bank  v.  Cooper's  admr.,  10,  331. 

Demand  must  be  made  on  the  last  day  of  grace.  Bank  v.  Simmons, 
331. 

The  want  of  funds  of  the  drawer  at  the  bank  will  excuse  the  demand 
there;  but  this  must  be  averred.     Bank  v.  Cooper's  admr.,  10. 

A  bank  depositor  must  make  an  actual  demand  for  his  deposit  before 
suit  brought.     Johnson  v.  Bank,  117,  496. 

It  seems  that  a  promise  by  an  indorser  with  knowledge  of  the  facts  is 
a  waiver  of  notice,  and  also  of  the  demand  on  the  drawer.  Bailey  v. 
Seal,  232. 

In  debt  on  a  bond  payable  on  demand,  plaintiff  need  not  prove  a  de- 
mand before  action  brought.     Hearn  v.  Beam,  498. 

DEVISE. 

Devise  to  A.  to  be  holden  of  him,  his  heirs  and  assigns  for  ever:  but  in 
case  A.  should  decease  without  lawful  issue,  then  the  lands  given  unto 
him  shall  go  and  descend  unto  B.  him  and  his  heirs  lawfully  begotten  of 
his  body  for  ever  —  gives  A.  but  an  estate  tail.  Lessee  of  Waples  v. 
Harman.  223. 

A  devise  to  A.  B.  and  C.  and  all  the  other  children  of  D.  that  shall 
hereafter  be  born,  with  directions  that  D.  should  keep  the  property  until 
the  yoiingest  child  he  then  had,  or  shall  hereafter  have,  shall  arrive  at 
age,  does  not  give  D.  a  right  to  the  possession  during  the  possibility  of 
issue,  but  only  during  the  minority  of  any  child  actually  in  existence. 
Lessee  of  Broom  v.  Thompson  et  al.,  343. 

General  devise  considered  a  fee  to  effect  the  intent  of  the  testator. 
Cordry  v.  Adams,  439. 

A  devise  to  A.  and  her  heirs  for  ever;  but  if  she  should  die  before  she 
arrives  at  lawful  age  or  has  heirs  lawfully  begotten  of  her  body,  then 
to  B. ;  is  a  fee  simple  in  A.  with  an  executory  devise  over  to  B.  and  not 
an  estate  tail.    Fergus'  lessee  v.  Robinson,  476. 

Or  may  be  changed  to  and  to  effectuate  the  intention  of  the  testator. 
Ibid.,  476. 

A  devise  to  A.  and  her  heirs  for  ever,  except  she  should  die  without 
an  heir  born  of  her  own  body,  then  over  to  B.  is  an  estate  tail  in  A. 
with  a  vested  remainder  in  B.,  and  not  a  contingent  fee  with  an  execu- 
tory devise.     Martin's  lessee  v.  Roach,  477. 


684  INDEX. 


DEVISE. 


A  devise  of  real  estate  to  a  church  is  void.  Ferguson's  lessee  r. 
Hedges,  624. 

A  lapsed  bequest  of  real  property  goes  to  the  heir  at  law;  a  void  one 
to  the  residuary  devisee.    Ibid.,  624. 

DIVORCE. 

The  court  will  entertain  a  suit  for  divorce  though  the  defendant  ap- 
pears and  does  not  deny  the  petition.    M'Caulley  v.  M'Caulley,  137. 

On  a  decree  of  divorce  the  court  will  inquire  into  waste  committed  by 
the  husband  on  the  wife's  land  since  the  petition,  and  compensate  her 
for  it  out  of  the  husband's  estate.     Gruhb  v.  Qruib,  516. 

DOWER. 

Damages  for  arrears  of  dower  can  be  recovered  against  a  purchaser 
only  from  the  time  of  his  title  accrued.     Newbold  v.  Ridgway  et  al.,  55. 

Interest  may  be  recovered  on  the  arrears  of  an  annuity  given  in  lieu 
of  dower.     Beeson's  ex'r.  v.  Beeson's  adm.,  106. 

Dower  may  be  assigned  against  one  of  several  tenants  in  common 
where  there  has  been  a  severance.     Ridgicay  et  al.  v.  Newbold,  385. 

It  seems  that  purchase  for  a  valuable  consideration  without  notice, 
is  not  a  good  defence  against  a  claim  of  dower,  either  at  law  or  in 
equity.     Tbid.,  385. 

Construction  of  the  terms  lien  and  incumbrance  in  the  dower  law  of 
1816.     Cfriflin  v.  Reese  et  ux.,  508. 

Debts  contracted  prior  to  the  act  of  1816  not  preferred  to  dower,  tin- 
less  they  are  liens,  &c.    Ibid.,  508. 

If  land  be  sold  by  the  sheriff  on  a  judgment  obtained  after  1816, 
though  for  a  debt  contracted  before,  it  is  liable  to  dower.     Ibid.,  508. 

A  sheriff's  sale  cannot  divest  the  claim  to  doAver  any  more  than  a  vol- 
untary sale  by  the  husband.    Ibid.,  508. 

EJECTMENT. 

In  a  mixed  possession  the  law  adjudges  it  to  him  who  has  the  legal 
title.     Hunter  v.  Lank,  10. 

The  boundaries  in  a  deed  are  to  be  first  regarded,  the  courses  and  dis- 
tances next.     Ibid.,  10. 

Title  under  sheriff's  sale  and  before  deed  executed  not  sufficient  to 
maintain  ejectment  upon.     Crawford's  lessee  v.   Oreen,  464. 

Sheriff's  deed  essential  to  title  by  execution.    Ibid.,  464. 

ESTATE  TAIL. 

The  lineal  warranty  of  tenant  in  tail  in  possession,  descending  with 
assets  of  equal  value  to  the  heir  in  tail,  bars  him  from  claiming  the 
lands  warranted.     Ford's  lessee  v.  Hays  et  al.,  48. 

Devise  to  A.  "to  be  holden  of  him,  his  heirs  and  assigns  for  ever;  but 
in  case  A.  should  decease  without  lawful  issue,  then  the  lands  given 
tinto  him  shall  go  and  descend  unto  B.  him  and  his  heirs  lawfully  be- 
gotten of  his  body  for  ever "  —  gives  A.  but  an  estate  tail.  Lessee  of 
Waples  V.  Barman,  223. 

A  devise  "  to  A.  and  her  heirs  for  ever ;  but  if  she  should  die  before 
she  arrives  at  lawful  age  or  has  heirs  lawfully  begotten  of  her  body, 
then  to  B."  is  a  fee  simple  in  A.  with  an  executory  devise  over  to  B.  and 
not  an  estate  tail.    Lessee  of  Fergus  v.  Robinson,  476. 

Or  may  be  changed  to  and  to  effect  the  intent.     Ibid.,  476. 

A  devise  "  to  A.  and  her  heirs  for  ever,  except  she  should  die  unthout 
an  heir  bom  of  her  own  body,"  then  over  to  B.  is  an  estate  tail  in  A. 
with  a  vested  remainder  in  B.  and  not  a  contingent  fee  with  an  execu- 
tory devise.     Martin's  lessee  v.  Roach,  477. 


INDEX.  585 

ESTOPPEL. 

The  lineal  warranty  of  tenant  in  tail  in  possession,  descending  with 
assets  of  equal  value  on  the  heir  in  tail,  bars  him  from  claiming  the 
land  warranted.     Lessee  of  Ford  v.  Hays  et  al.,  48. 

A.  being  seized  in  fee  of  an  estate,  joins  in  a  deed  of  partition  of  the 
estate  of  his  wife's  father,  and  takes  this  estate,  inter  alia,  as  his  wife's 
share  of  her  father's  estate  —  held  that  the  heirs  of  A.  are  estopped  from 
claiming  A.'s  original  title.     Lessee  of  Simmons  v.  Logan,  110. 

A  deed  of  partition  operates  as  an  estoppel  as  to  the  parties  and  all 
claiming  under  them.     Ibid.,  110. 

Facts  admitted  on  one  sci.  fa.  cannot  be  controverted  on  an  alias  sci. 
fa.     Earle's  use  v.  Millen's  adni.,,139. 

EVIDENCE. 

The  notarial  book  of  a  deceased  notary  is  evidence  of  the  facts  it  states 
in  relation  to  protest,  notice,  &c.    Bank  v.  Cooper's  adm.,  10. 

In  an  action  on  the  warranty  of  a  horse,  proof  that  the  defendant 
pending  the  negotiation,  said  to  a  third  person,  I  will  warrant  the  horse 
to  be  sound,  will  not  sustain  the  action.     Sipple  v.  Breen,  16. 

And  sucli  warranty  though  made  to  an  agent  of  both  parties  appointed 
to  effect  an  exchange  between  them,  will  not  support  the  action  il  the 
exchange  be  not  made  by  the  agent.     Ibid.,  16. 

The  proper  proof  of  a  sealed  instrument  is  by  the'  attesting  witness, 
or  by  proof  of  his  handwriting  if  he  be  dead,  &c.  Proof  of  the  hand- 
writing of  the  obligor  is  not  sufficient.     Lambden's  ex'r.  v.  Norris,  22. 

Proof  of  facts  amounting  to  a  payment  or  discharge  in  law,  does  not 
support  a  plea  of  actual  payment.  State,  use  of  Reading's  adm.  v. 
Reading,  23,  190,  331. 

Evidence  of  a  bond  to  Sarah  Eliza  R.  does  not  support  the  averment 
of  a  bond  to  Elis;a  R.    Ibid.,  23. 

The  admissions  of  a  party  having  a  community  of  interest  with  the 
other  defendants  are  evidence  against  all.     Ibid.,  23. 

The  discharge  of  an  indorser  by  the  acts  of  the  holder  cannot  be  set 
up  at  law  after  judgment.     M'Dowell  v.  Bank,  27. 

A  variance  between  a  contract  alleged  and  one  offered  in  evidence  is 
fatal;  whether  the  action  be  upon  the  contract,  or  in  tort  arising  out 
of  it.     Randel  v.  Wright,  34. 

In  an  action  on  the  warranty  of  a  vessel  at  the  suit  of  the  owner,  the 
master  is  not  a  competent  witness  to  prove  that  the  vessel  was  lost 
through  unsoundness  and  not  from  negligence.  Newbold  et  al.  v.  Wil- 
kins,  43. 

A  probate  must  disclose  all  the  credits  within  the  plaintiff's  knowl- 
edge.    Lolley  V.  Needham,'s  ex'r.,  86. 

The  deposit  book  or  seratcher  of  a  bank  is  evidence  against  a  dealer. 
Johnson  v.  Bank,  117. 

When  an  attorney  is  privileged  from  giving  evidence.     Ibid.,  117. 

It  seems  that  indentures  executed  by  the  Orphan's  Court  of  Maryland 
are  not  sufficient  evidence  without  the  law  authorizing  such  court  to 
bind.     Potter  v.  Eyndman,  123. 

In  case  for  malicious  prosecution  plaintiff  must  prove  the  prosecu- 
tion, acquittal,  want  of  probable  cause,  and  malice  of  the  defendant. 
Rhodes  v.  Silvers,  127. 

In  an  action  on  the  case  for  recommending  a  person  as  fit  to  be 
trusted  when  in  fact  he  was  insolvent,  the  knowledge  of  his  insolvency 
as  well  as  the  fraudulent  intent,  must  be  proved.    Fooks  v.  Waples,  131. 

Books  of  assessment  are  not  evidence  to  prove  property  or  value,  ex- 
cept as  between  the  county  and  the  assessed.  Griffith  et  ux.  v.  Johnson's 
adm.,  136. 

In  an  action  of  covenant  against  a  corporation  a  contract  made  and 


586  INDEX. 

EVIDENCE. 

executed  by  a  committee  of  the  board  of  directors,  but  not  under  the 
corporate  seal,  is  not  evidence;  though  the  authority  of  the  committee 
be  proved,  and  the  contract  actually  recognised  and  acted  upon  by  the 
company.     Randel  v.  Ches.  and  Del.  Canal  Co.,  234. 

The  answer  of  a  corporation  is  evidence  against  them,  though  made 
in  a  different  cause,  and  without  oath.     Ibid.,  234. 

The  directions  of  an  agent  of-  a  company  in  relation  to  their  business, 
and  his  declarations  at  the  time  of  giving  such  orders  in  relation  thereto 
as  to  their  business  generally,  being  part  of  the  res  gesta,  are  evidence 
against  the  company:  but  his  general  declarations,  conversations,  or 
letters  not  immediately  connected  with  or  growing  out  of  the  discharge 
of  his  agency,  are  not  evidence.     Ibid.,  234. 

And  the  nature  of  his  agency,  and  its  extent,  may  be  inferred  from 
facts,  and  the  connection  of  his  acts  with  the  business  in  which  he  is 
employed.     Ibid.,  234. 

Depositions  written  out  by  a  witness  admitted  in  evidence  under 
peculiar  circumstances.     Ibid.,  234. 

The  protest  of  an  inland  bill  is  not  proved  by  the  notarial  seal,  but 
the  notary  must  be  called:  though  it  appear  from  the  bill  that  it  has 
been  indorsed  to  a  foreigner.     Ibid.,  234. 

A  statement  in  writing  made  by  a  person,  though  not  on  oath,  ad- 
mitted to  contradict  his  deposition.     Wright  v.  Richards'a  adm.,  323. 

A  natural  guardian  account  is  not  evidence.  Cannon's  use  v.  Lay- 
ton,  324. 

In  an  action  otf  trespass  the  declarations  of  defendant  at  the  time  are 
evidence  to  show  the  quo  animo,  and  admissible  as  a  part  of  the  res 
gesta.     Emory  v.  Collings,  325. 

The  endorsement  of  a  notary  taken  as  evidence  of  the  time  of  demand, 
though  the  protest  bore  a  different  date,  on  a  proof  of  his  usage.  Bank 
V.  Simmons,   331. 

The  want  or  failure  of  the  consideration  of  a  note  may  be  given  in 
evidence  as  between  the  original  parties.     Hartwell  v.  Mac  Beth,  363. 

The  oath  of  one  witness  with  corroborating  circumstances,  will  out- 
weigh an  answer  on  oath.     M'Dowell  v.  Bank,  369. 

Queret  Will  not  the  oath  of  one  witness,  unsupported,  establish  a 
fact  against  the  answer  of  a  corporation.     Ibid.,  369. 

The  plaintiff  is  competent  to  prove  the  loss  and  manner  of  the  loss  of 
a  bond.     Shrowders  v.  Harper,  444. 

The  proof  is  to  the  court  who  are  to  be  satisfied  of  the  loss  before 
admitting  secondary  evidence.     Ibid.,   444. 

The  loss  of  a  paper  is  first  to  be  proved;  then  its  execution  in  the 
same  manner  as  if  produced.     Ibid.,  444. 

Bill  of  lading  proof  of  property.    Bailey  v.  Capelle,  449. 

Sheriff's  sale  no  evidence  of  value  in  an  action  against  him  for  an 
illegal  seizure.     Ibid.,  449. 

Sheriff's  return  is  prima  facie  evidence.     Ibid.,  449. 

Payment  may  be  proved  by  parol  though  a  receipt  was  given.  Donely 
V.  M'Grann  et  al.,  453. 

The  acts  of  an  agent  in  the  general  course  of  his  employment  are 
evidence  against  his  principal  without  proof  that  they  were  done  by  his 
orders.     M'aples  v.  Waples,  474. 

A  levy  to  the  amount  is  prima  facie  a  satisfaction.  Davis'  use  T. 
Biddle,  500. 

Queref  Is  a  levy  on  land  a  satisfaction,  prima  facie.     Ibid.,  500. 

In  slander  the  defendant  cannot  on  the  general  issue  give  in  evidence 
facts  to  disprove  malice,  or  mitigate  the  damages,  if  such  facts  tend  to 


INDEX.  587 

E"\r[DEXCE. 

establish  the  truth  of  the  charge;  though  he  expressly  admit  the  words 
to  be  false.     Waggstaff  v.  Ashton,  503. 

Lottery  tickets  are  regarded  as  an  article  of  merchandise  and  charge- 
able in  a  book  account  for  the  purposes  of  evidence.  Bailey  v.  M'DoW' 
ell,  346. 

When  a  note  is  made  payable  at  a  certain  place  demand  at  the  place 
must  be  proved.     Bank  v.  Si)nmons,  331. 

FALSE  IMPRISONMENT. 

A  false  imprisonment  does  not  necessarily  include  an  assault  and  bat- 
tery,    llurph}/  V.  Countiss,  143. 

If  an  officer  illegally  imprison  a  person  he  is  liable  not  only  for  the 
time  he  is  in  the  officer's  custody,  but  for  all  the  time  of  the  imprison- 
ment.    Ibid.,  143. 

FRAUDS,  Stat,  of.— (See  Chancery.) 

HUSBAND  AND  WIFE. 

Husband  takes  the  wife's  property  by  force  of  the  marital  rite,  and 
not  as  a  purchaser.  He  therefore  takes  it  subject  to  all  equities.  Cole- 
man V.  Wnplcs,  196. 

A  wife's  chose  in  action  is  liable  to  be  attached  for  the  debts  of  her 
husband.     Johnson  v.   Green's  garnishee,  442. 

INDENTURES. 

Indentures  of  apprenticeship  will  not  be  vacated  merely  because  the 
master  is  compelled  to  take  the  benefit  of  the  insolvent  laws.  Ex  parte 
Davis,  17. 

Forms  of  indentures,  by  Justices  of  the  Peace,  or  Trustees  of  the 
Poor,   18. 

INDORSER  AND  INDORSEE. 

To  charge  a  party  as  indorser  there  must  be  an  endorsement  either  in 
person  or  by  procuration.     Bank  v.  Houston,  225. 

A  collateral  agreement  to  be  bound  as  indorser  does  not  make  the 
party  liable  as  an  indorser.     Ibid.,  225. 

It  seems  that  a  promise  by  indorser,  with  knowledge  of  the  facts,  is 
a  waiver  of  notice,  and  also  of  the  demand  on  the  drawer.  Bailey  v. 
Seal,  2.32. 

A  blank  endorsement  does  not  absolutely  transfer  the  property  in  the 
note.     EarUcell  v.  Mac  Beth,   363. 

Either  indorsee  or  indorser  may  sue  upon  it.    Ibid,  363. 

The  indorser  may  turn  it  into  a  special  indorsement,  and  then  he  only 
can  sue.     Ibid,  363. 

The  payee  of  a  note  cannot  indorse  it  over  after  it  has  been  attached 
in  the  drawer's  hands.     Robinson  v.  Mitchell  d  Co.,  365. 

If  the  maker  of  a  note  has  funds  in  the  bank  on  general  deposit  after 
the  note  falls  due,  the  bank  is  bound  to  apply  them  in  payment  of  the 
note,  or  the  indorser  is  discharged.     M'Douell  v.  The  Bank,  369. 

Giving  time  to  the  draAver  discharges  the  indorser.     Ibid,  369. 

The  indorser  of  a  note  under  protest  is  not  entitled,  even  in  equity,  to 
be  considered  a  creditor  of  the  drawer,  and  to  come  in  for  a  share  of 
his  effects  imder  a  general  assignment  for  the  benefit  of  his  creditors. 
Farmers'  Bank  v.  Gilpin  et  al.,  561. 

INSOLVENTS. 

A  petitioner  cannot  have  the  benefit  of  the  insolvent  laws  unless  he 
be  actually  in  prison.     Seal's  case.  347. 

If  the  sherifT  permit  a  voluntary  escape,  he  cannot  retake  the  prisoner. 
Ibid,  347. 

75 


588  INDEX. 

INSOLVENTS. 

A  voluntary  assignment  in  contemplation  of  insolvency  and  prefer- 
ring creditors,  made  in  Pennsylvania,  will  not  be  sustained  by  our  courti 
as  against  a  subsequent  attachment,  by  a  citizen  of  this  state,  of  the 
insolvent's  effects  here.     Mayberry  d  Co.  v.  Shissler,  349. 

If  by  such  assignment  a  benefit  is  reserved  to  the  assignee  to  tli« 
prejudice  of  his  creditors,  it  vitiates  the  deed.     Ibid,  349. 

A  discharge  under  the  insolvent  laws  of  New  York  prevents  the  arrest 
of  the  debtor's  person  here,  if  the  debt  arose  there.  Bailey  v.  8eal'» 
bail,   367. 

Exonereter  entered  on  a  bail  piece  on  it  appearing  that  the  principal 
had  been  discharged  under  the  insolvent  laws  of  another  State.  M'Olenty 
d  Wolf  V.  M'Lear,  466. 

INTEREST. 

Seven  per  cent,  interest  allowed  here  on  a  note  drawn  in  New  York. 
Bailey  v.  Seal,  232. 

Interest  on  damages  is  discretionary  with  the  jury.  Randel  v.  The 
Canal  Co.,  234,  449. 

Quere.  Whether  interest  on  arrears  of  an  annuity  is  not  allowable 
in  certain  cases.    Waples'  adm'x.  v.  Waples  et  al.,  392. 

JUDGMENT. 

A  fi.  fa.  cannot  issue  on  a  judgment  before  a  Justice  of  the  Peace, 
after  the  death  of  defendant,  without  sci.  fa.     Cooper  et  ux.  v.  May,  18. 

It  seems  that  a  judgment  may  be  kept  alive  by  a  fi.  fa.  issued  within 
the  year  and  day,  and  by  regular  continuances  by  vice  comes  afterwards, 
as  against  the  original  party.     Ibid,  18. 

And  on  the  defendant's  death  a  fw  fa.  may  issue,  if  .by  relation  it  can 
be  tested  previous  to  the  death.     Ibid,  18. 

But  after  defendant's  death  and  one  term  elapsed,  no  execution  can 
issue  without  a  previous  set.  fa.    Ibid,  18. 

The  act  "  concerning  the  entering  of  judgment  bonds "  is  constitu* 
tional.     Beeson  v.  Beeson's  adm'r.,  466. 

Construction  given  to  that  act.     Ibid,  466. 

The  word  "  tenor "  as  used  therein  means  only  substance  or  import. 
Ibid,  466. 

Construction  of  the  constitutional  restriction  against  impairing  the  ob- 
ligation of  contracts.    Ibid,  466. 

The  propriety  of  an  ofder  of  the  Orphans'  Court  directing  a  sale  of 
lands  for  the  payment  of  debts,  cannot  be  controverted  in  any  collateral 
proceeding.    Martin's  lessee  v.  Roach,  477,  548. 

LANDLORD  AND  TENANT. 

If  a  tenant  abandon  a  house,  though  he  leaves  some  of  his  goods  on  the 
premises,  the  landlord  may  enter  and  take  proper  care  of  the  premises 
without  being  guilty  of  an  eviction.     State  v.  M'Clay  et  al.,  520. 

It  seems  that  the  incoming  tenant  has  a  right  to  fill  the  ice-house  befor« 
his  terra  commences,  from  necessity  and  the  custom.     Ibid,  520. 

The  way-going  tenant  is  entitled  to  the  wheat  crop  by  the  general 
custom  of  our  state;  not  so  of  the  oat  crop.     Tcmpleman  v.  Biddle,  622. 


LEVY. 


The  inventory  and  appraisement  of  the  goods  is  the  levy.     Sipple  r. 
Scotten.  107. 

What  is  due  diligence  in  making  a  levy.     State  v.  Porter,  126. 
Goods  of  the  deceased  remaining  in  specie  are  liable  to  be  taken  in 


INDEX.  589 

LEVY. 

execution,  unless  they  have  been  administered  in  whole  or  in  part  by  the 
payment  of  debts.     Adains'  adm'r.  v.  Burton,   138. 

A  covenant  for  the  forthcoming  of  goods  to  be  levied  on  at  the  suit 
of  A.  is  broken  by  causing  them  to  be  levied  on  in  the  meantime  at  the 
suit  of  the  covenantor.     Whiteman  v.  Slack,  144. 

The  lien  of  a  levy  under  a  fi.  fa.  is  limited  to  the  property  ascertained 
by  the  inventory  and  appraisement.     Bank  v.  Massey,  186. 

A  leasehold  interest  in  a  house  and  lot  is  not  bound  by  a  return  of 
"  levied  on  goods  and  on  lands  as  per  inquisition  annexed,"  no  inven- 
tory being  made  specifying  the  leasehold.     Ibid,  186. 

If  a  trial  be  granted  after  judgment  entered  on  a  judgment  note  it 
vacates  that  judgment,  unless  there  has  been  a  levy.  Ringgold  v.  Orif' 
fin,  224. 

And  in  such  case  there  is  no  appeal  from  a  subsequent  judgment  under 
five  dollars  and  thirty-three  cents.     Ibid,  224. 

After  a  levy  to  the  amount,  though  returned  subject,  &c.,  no  fi.  fa.  for 
residue  can  issue  until  the  old  levy  be  disposed  of.  Davis'  use  v.  Bid- 
die,  500. 

Nor  can  a  fi.  fa.  for  residue  accompany  the  venditioni  for  that  pur- 
pose.   Ibid,  500. 

A  levy  to  the  amount  is  prima  facie  a  satisfaction.     Ibid,  500. 

Quere.     Is  a  levy  on  land  a  satisfaction  prima  facie.     Ibid,  500. 

LIEN. 

A  by-law  of  a  bank  giving  it  a  lien  on  stock  for  the  debts  of  the  holder 
is  valid.     M'Dowell  v.  Bank,  27. 

How  far  a  vendor  has  a  lien  on  the  land  for  his  purchase  money,  and 
against  whom.     Budd  v.  Busti  et  al.,  69. 

The  lien  of  a  levy  under  a  fi.  fa.  is  limited  to  the  property  ascertained 
by  the  inventory  and  appraisement.     Bank  v.  Massey,  186. 

Semble:  If  lands  bound  by  a  recognizance  in  the  Orphans'  Court  be 
sold  under  a  younger  judgment,  the  money  is  applicable  to  the  recog- 
nizance and  the  lien  is  discharged,     Reading's  heirs  v.  The  State,  190. 

But  in  an  action  against  one  of  the  recognizors  such  a  defence  cannot 
be  set  up  under  a  plea  of  payment.     Ibid,  190. 

If  a  bailee  surrenders  the  pledge  to  bailor  his  lien  is  gone.  Scott  v. 
Heather,  330. 

Prior  liens  should  be  specified  in  a  sheriff's  return.  Davis'  use  v. 
Biddle,  500. 

Construction  of  the  terms  lien  and  incumbrance  in  the  dower  law  of 
1816.     Oriffin  v.  Reece  et  ux.,  508. 

LOTTERY. 

Persons  undertaking  to  draw  a  lottery  must  comply  with  all  the  re- 
quirements of  the  grant.     Vannini  et  al.  v.  Paine  et  al.,  65. 

Lottery  tickets  are  regarded  as  an  article  of  merchandize,  and  charge- 
able in  a  book  account  for  the  purposes  of  evidence.  Bailey  v.  M'Dowell, 
346. 

MANDAMUS. 

The  Superior  Court  cannot  send  a  mandamus  to  the  Orphans'  Court  to 
compel  the  signing  of  a  bill  of  exceptions.  Crawford  v.  Short  et  al., 
355. 

PARTITION. 

A  partition  may  be  presumed  from  a  long  several  holding  by  heirs  of 
land  descended  to  them  from  a  common  ancestor.  M'Call  v.  Reybold, 
146. 

PATENT  CASES. 

Jurisdiction  of  State  Courts  in  patent  cases.  Vannini  et  al.  v.  Paine 
et  al.,  65. 


690  INDEX. 

PLEADING. 

Indebitatus  assumpsit  will  not  lie  by  the  administrator  of  tenant  for 
life  for  an  apportionment  of  the  rent:  Plaintiff  must  declare  specially. 
Harris'  ex'r.  v.  Vickers,  C. 

Trover  -will  lie  against  an  administrator  personally  for  a  conversion 
by  him,  though  the  property  came  to  him  with  the  estate  of  his  intestate. 
Burton's  adm'r.  v.  Miller  et  al.,  7. 

If  a  plea  in  abatement  conclude  in  bar,  the  plaintiff  may  treat  it  as 
a  plea  in  bar,  and  the  judgment  will  be  final.     Spencer  v.  Button,  75. 

Replevin  will  not  lie  by  the  part  owner  of  a  chattel  for  his  undivided 
share.     Prichard's  adm'r.  v.  Culver,  76. 

If  the  narr.  contain  a  sufficient  cause  of  action  with  matter  not  action- 
able, it  will  be  intended  after  verdict  that  damages  were  given  only  for 
the  actionable  part;  and  this  though  there  be  but  one  count.     Ibid,  76. 

In  an  action  on  a  guardian  bond  the  plaintiff  must  show  a  sufficient 
breach  in  his  replication  or  other  pleading,  or  by  suggestion  on  the 
record.     Bishop  v.  Wilds'  adm'r.,  87. 

The  words  "value  received"  is  sufficient  statement  of  a  consideration 
in  a  promise  to  pay  the  debt  of  another.     Brooks  v.  Morgan,  123. 

Assumpsit  will  lie  for  a  fee  due  to  counsel.     Stevens  v.  Monges,  127. 

Infancy  must  be  specially  replied  to  a  plea  of  the  statute  of  limita- 
tions.    State  v.  Stockley's  adm'r.,  134. 

To  declare  in  a  different  form  of  action  from  that  in  which  the  bail 
is  taken  releases/the  bail.     Waples  v.  Derrickson,  134. 

The  plea  of  non  cepit  in  replevin  admits  the  property.  Eaves'  adm'r. 
V.  King,  141. 

"  We  certify  that  we  are  bound  to  pay  "  is  a  promise  to  pay.  Milner 
T.  Bainton  d  Bancroft,  144. 

In  covenant  the  breach  may  be  assigned  in  the  words  of  the  covenant 
■where  such  general  assignment  amounts  to  a  breach.  Randel  v.  The 
Ches.  &  Del.  Canal  Co.,  151. 

Less  particularity  is  required  where  the  matter  rests  in  the  knowledge 
of  the  other  party.     Ibid,  151. 

Enough  must  be  placed  on  the  record  to  show  that  the  covenant  is 
broken,  and  that  the  plaintiff  has  a  cause  of  action.     Ibid,  151. 

In  debt  on  a  bond,  or  sci.  fa.  on  a  recognizance,  every  thing  in  avoid- 
ance or  discharge  of  the  bond  or  recognizance  must  be  specially  pleaded. 
Reading's  heirs  v.  The  State,  190. 

The  object  of  pleading  is  notice  to  the  other  side  as  well  as  the  sim- 
plifying the  issues.     Ibid,  190,  216. 

Matters  which  amount  to  the  general  issue  cannot  be  specially  pleaded. 
Ibid,  190. 

A  private  act  of  assembly  must  be  pleaded  and  proved.  Cochran  t. 
Evans'  adm.,  200. 

Pleadings  are  amendable,  in  the  discretion  of  the  court,  at  any  time 
before  judgment.     State  use  of  Godwin  v.  Collins  et  al,  216. 

The  distinction  between  pleadings  in  paper  and  of  record  not  applica- 
ble to  our  practice.     Ibid,  216. 

To  recover  on  the  money  counts  the  plaintiff  must  show  that  money 
has  been  actually  received  by  defendant  to  his  use.  Bank  v.  Houston, 
225. 

Nul  tiel  record  is  not  a  good  plea  in  an  action  on  the  official  bond  of 
a  public  officer,  though  such  bond  is  directed  by  law  to  be  recorded. 
State  V.  Houston,  230. 

Queref  Whether  non  est  factum  can  be  pleaded  to  a  public  bond  with- 
out affidavit  denying  the  execution.     Ibid,  230. 

So  much  only  of  an  instrument  need  be  set  out  as  entitles  the  plaintiff 
to  his  action;  but  he  must  set  it  out  truly.     Ibid,  230. 

A  contract  may  be  declared  on  by  setting  out  a  counterpart  executed 
by  only  one  of  the  parties.    Randel  v.  The  Ches.  and  Del.  Canal  Co.,  234. 


I 


INDEX.  591 

PLEADING. 

In  a  i)lea  of  confession  and  avoidance  the  plea  admits  all  the  material 
and  traversable  facts  averred  in  the  breach;  they  need  not  therefore  be 
proved:  but  it  does  not  admit  the  damage,  which  must  be  proved.  Ibid, 
234. 

Judgment  by  default,  or  on  demurrer,  admits  the  cause  of  action,  and 
establishes  the  plaintiff's  right  to  recover:  and  where  the  contract  de- 
clared on  is  for  a  sum  certain,  as  in  debt,  and  the  declaration  either 
ascertains  the  amount  or  sets  out  an  instrument  from  which  the  amount 
can  be  certainly  ascertained  by  calculation,  the  judgment  is  also  conclu- 
sive as  to  the  amount.     Ibid,  234. 

But  where  the  matter  sued  for  sounds  in  damages,  or  is  in  its  nature 
uncertain,  such  a  judgment  establishes  no  amount  of  damages,  but  it 
fixes  the  right  to  recover,  and  the  cause  of  action  need  not  afterwards 
be  proved.     Ibid,  234, 

Variance  in  the  date  of  an  instrument  declared  on  is  fatal;  the  date 
being  matter  of  description.     Bank  v.  Simmons,  331. 

Matter  amounting  to  the  general  issue  cannot  be  pleaded  with  the 
general   issue.     Tatlow  v.  Jaquett,  333. 

The  defence  of  purchase  for  a  valuable  consideration  without  notice 
may  be  made  by  answer  as  well  as  plea.  Ridgeway  and  Newbold  v. 
Newbold,  385. 

But  the  answer  must  contain  all  the  requisites  of  a  plea.     Ibid.,  385. 

Deed  pleaded  with  profert.  Oyer  prayed  and  granted.  Replication 
denying  performance  of  covenants,  without  setting  out  the  deed:  ad- 
judged bad  for  this  cause.     Polk  v.  Bull's  adm.,  433. 

The  prayer  and  grant  of  oyer  do  not  make  the  deed  a  part  of  the 
record.  It  is  obligatory  on  the  party  who  would  take  advantage  of  it, 
to  set  it  out.     Ibid,  433. 

If  plaintiff  omit  to  aver  performance  of  a  condition  precedent  in  hia 
narr.  the  defendant  should  set  the  deed  out  on  oyer  and  demur.  Ibid, 
433. 

Assumpsit  is  a  very  liberal  form  of  action.     Guthrie  v.  Hyatt,  446. 

In  ejpctment  the  demise  must  always  be  laid  after  title  accrued. 
Craioford's  lessee  v.  Green,  464. 

In  an  action  on  the  case,  though  for  a  tort,  the  defendant  may  justify 
•under  the  general  issue.     Rust  v.  Flowers,  475. 

In  slander  the  defendant  cannot  on  the  general  issue  give  in  evidence 
facts  to  disprove  malice,  or  mitigate  the  damages,  if  such  facts  tend  to 
establish  the  truth  of  the  charge,  though  he  expressly  admit  the  words 
to  be  false.     Waggstaff  v.  Ashton,  503. 

A  charge  of  perjury  is  actionable  without  a  colloquium,  shewing  that 
it  was  in  the  course  of  a  judicial  proceeding.     Ibid,  503. 

In  scire  facias  on  a  judgment  against  two  defendants,  one  of  them 
cannot  plead  that  he  is  surety  and  discharged  by  agreement  giving  time 
to  his  principal.     Farmers  Bank  v.  Horsey  et  al.,  514. 

Oyer  of  the  bond  is  not  deraandable  after  judgment.     Ibid,  514. 

At  law  all  the  obligors  in  a  bond  are  principals.    Ibid,  514. 

A  check  deposited  in  the  hands  of  a  stake-holder  cannot  be  recovered 
in  an  action  for  money  had  and  received;  he  is  liable  for  the  deposit 
only  as  received.     Porter  v.  Sawyer,  617. 

PRACTICE. 

A  deposition  to  a  leading  interrogatory  will  not  be  suppressed  at  the 
trial  if  full  opportunity  be  given  to  object  to  it  before.  Goslin  v.  Can- 
non, 3. 

A  ^.  fa.  cannot  issue  on  a  judgment  before  a  Justice  of  the  Peace 
after  the  death  of  the  defendant  without  a  sci.  fa.  Cooper  and  wife  v. 
May,  18. 

It  seems  that  a  judgment  may  be  kept  alive  by  a  /?.  fa.  issued  within 


692  INDEX. 

PRACTICE. 

the  year  and  day,  and  by  regular  continuances  by  vice  cojnes  afterwards, 
as  against  the  original  party.    Ibid,  18. 

And  on  the  defendant's  death  a  fi.  fa.  may  issue  if  by  relation  it  can 
be  tested  previous  to  the  death.     Ibid,  18. 

But  after  defendant's  death  and  one  term  elapsed  no  execution  can 
issue  without  a  previous  sci.  fa.     Ibid,  18,  513. 

Nor  can  an  alias  issue  after  a  fi.  fa.  vice  comes  where  several  terms 
have  intervened.    Bank  v.  Reynolds,  513. 

The  court  will  not  reserve  a  clear  point  for  argument  before  all  the 
judges,  however  important  the  point  may  be  in  the  particular  case.  Ban- 
del  v.  Wright,  34. 

The  court  will  not  permit  a  party  to  demur  after  issue  joined  and  the 
jury  sworn.     Bonwill  v.  Dickson,  105. 

Affirmative  pleadings  do  not  always  give  the  right  to  conclude;  this 
depends  on  the  onus  probandi.     Ibid,  105. 

A  probate  may  be  produced  in  any  stage  of  the  cause.  Beeson's  ex'r. 
V.  Beeson's  admr.,  106. 

The  inventory  and  appraisement  of  goods  is  the  levy.  Sipple  v.  Bcot- 
ten,  107. 

Notices  of  sale  should  specify  the  most  prominent  articles.    Ibid,  107. 

An  unexpired  term  ought  to  be  specified.    Ibid,  107. 

A  witness  to  a  deed  who  has  proved  it  in  court  may  be  impeached, 
though  he  be  not  a  witness  in  the  cause.  Vandyke's  lessee  v.  Thomp- 
son €t  aU  109. 

A  party  to  a  bill  may  write  over  a  blank  indorsement  any  promise 
consistent  with  the  transaction.     Erwin  v.  Lam,born,  125. 

In  case  for  malicious  prosecution  plaintiff  must  prove  the  prosecution, 
acquittal,  want  of  probable  cause  and  malice  of  defendant.  Rhodes  v. 
Silvers,  127. 

Facts  admitted  on  one  sci.  fa.  cannot  be  controverted  on  an  alias  sci. 
fa.    Earle's  use  v.  Millen's  admr.,  139. 

In  debt  on  an  administration  bond  plaintiff  must  show  assets.  State 
V.  Beckley,  142. 

A  statement  filed  with  the  register  that  there  are  no  goods,  is  equiva- 
lent to  filing  an  inventory.     Ibid,  142. 

In  trespass  against  road  commissioners  for  laying  out  a  road  different 
from  the  order,  the  deviation  may  be  proved  without  laying  down  pre- 
tensions.    Huey  v.  Hendrixen  et  al.,  146. 

After  argument  on  general  demurrer,  and  the  opinion  of  the  court  de- 
livered, leave  to  withdraw  the  demurrer  and  plead  over  refused.  Ran- 
del  v.  The  Ches.  and  Del.  Canal  Co.,  151,  433. 

Judgments  by  confession  are  not  within  the  statutes  8th  and  9th 
William,  requiring  a  suggestion  of  breaches.     Bauduy  v.  Bradun,  182. 

Execution  may  issue  on  such  a  judgment  entered  on  a  bond  with  a 
collateral  condition.     Ibid,  182. 

Two  returns  of  nihil  on  two  consecutive  set.  fa.'s  are  equal  to  a  scire 
feci.    Ibid,  182. 

After  the  second  return  plaintiff  has  a  day  in  court  to  sign  judgment, 
and  he  may  do  it  within  the  year  and  day.    Ibid,  182. 

Queref  If  the  sheriff  neglect  to  return  an  inventory  and  appraisement, 
can  plaintiff  have  further  execution  process  against  the  defendant? 
Bank  v.  Massey,  186. 

If  a  material  fact  stated  in  a  bill  in  chancery  be  neither  admiHed 
nor  denied  in  the  answer,  the  complainant  must  prove  it  at  the  trial. 
Cochran  v.  Evans'  admr.,  200. 

What  is  admitted  need  not  be  proved;  but  what  is  not  denied  is  not 
therefore  admitted.    Ibid,  200. 


INDEX.  593 

PRACTICE. 

After  aepositions  are  published  and  read  further  testimony  cannot  be 
taken.     Woodlin  et  al.  v.  Hynsons,  224. 

If  the  competency  of  a  deposing  witness  is  to  be  attacked,  exceptions 
should  be  filed  to  notify  the  other  side.     Ibid,  224. 

A  party  calling  for  papers  from  the  other  side  makes  them  evidence 
if  he  inspect  them,  234. 

Depositions  taken  on  leading  interrogatories  will  be  suppressed  at  the 
trial  if  exceptions  have  been  filed,  and  the  party  not  taken  by  surprise. 
Randel  v.  The  Ches.  d  Del.  Canal  Co.,  234. 

Service  of  interrogatories  by  copy  left  at  the  office  of  the  attorney  of 
the  opposite  party,  is  sufficient  notice  of  the  taking  out  of  a  commis- 
sion.    Ibid,  234. 

A  witness  allowed,  under  peculiar  circumstances,  to  write  his  answers 
to  interrogatories,  and  the  deposition  admitted.     Ibid,  234. 

The  protest  of  an  inland  bill  is  not  proved  by  the  notarial  seal,  but  tfie 
notary  must  be  called.     Ibid,  234. 

Inquisition  of  damages,  form  of  —  Ibid,  321. 

Indentures  of  Apprentices  by  Justices,  &c.,  forms  of — 18. 

Decree  of  divorce  a  vinculis  matrimonii,  137,  516. 

Lands  cannot  be  inquired  on  before  a  sale  of  the  goods.  Wilson's 
adm'r.  v.  Hukill,  347. 

The  inquisition  must  be  objected  to  at  the  first  term.     Ibid,  347. 

A  kinatic  may  defend  by  next  friend  without  having  a  commission. 
Allen  &  Go.  v.  Babcock,  348. 

Lunacy  may  be  set  up  against  a  note  at  least  as  between  the  original 
parties  or  against  the  first  indorser.     Ibid,  348. 

An  appeal  from  the  Orphans'  Court  cannot  be  heard  without  a  state- 
ment of  the  points  decided.     Crawford  et  al.  v.  Short  et  al.,  355. 

It  is  the  duty  of  the  party  to  apply  for  such  statement.     Ibid,  355. 

Notice  to  counsel  of  the  meeting  of  arbitrators  held  sufficient,  under 
circumstances.     Cazier  v.  Blackstock,  362. 

As  a  general  rule  notice  must  be  given  to  the  party.     Ibid,  362,  497. 

Under  peculiar  circumstances  a  court  of  equity  will  assess  damages, 
or  send  an  issue  to  have  them  assessed.     M'Dowell  v.  The  Bank,  369. 

Notice  of  the  execution  of  a  commission  to  lay  off  dower  under  a  decree 
of  the  court  need  not  be  given  to  the  tenant  who  is  a  party  to  the  suit. 
Ridgway  d  Newbold  v.  Neicbold,  385. 

The  defence  of  purchase  for  valuable  consideration  without  notice  may 
be  made  by  answer  as  well  as  by  plea.     Ibid,  385. 

On  oyer  prayed  and  granted  the  defendant  is  entitled  to  a  copy  of  the 
deed,  and  the  court  will  stay  proceedings  until  it  is  furnished.  Polk  v. 
Bull's  adm'r.,  433. 

If  plaintiff  in  an  execution  order  a  sale  before  the  time  allowed  by 
latf,  he,  as  well  as  the  constable,  is  a  trespasser.  Minus  v.  Stant  et  al., 
445. 

Judgment  in  replevin  is  for  the  sum  found  due  as  debt,  and  the  value 
of  the  property  destrained  need  not  be  found.  Donely  v.  M'Orann  et  al., 
453. 

Testimony  will  not  be  admitted  in  reply  which  might  have  been  ad- 
duced in  chief.     Chandler  et  al.  v.  Ferris,  454. 

The  party  which  has  the  burthen  of  proof  has  the  opening  and  con- 
clusion.    Ibid,  454. 

On  an  issue  of  devisavit  vel  non  the  caveators  have  the  onus.     Ibid,  454. 

In  an  action  on  the  case  though  for  a  tort,  the  defendant  may  justify 
under  the  general  issue.     Rust  v.  Flowers,  A15. 

The  propriety  of  an  order  of  the  Orphan's  Court  directing  a  sale  of 
lands  for  the  payment  of  debts  cannot  be  controverted  in  any  collateral 
proceeding.     Martin's  lessee  v.  Roach,  477,  548. 


594  INDEX. 

PRACTICE. 

Under  the  old  act  of  assembly  the  record  of  a  deed  was  by  the  settled 
practice  of  the  courts  permitted  to  be  read  in  evidence,  though  such  deed 
had  not  been  recorded  within  a  year  from  its  execution.     Ibid,  477,  548. 

After  a  levy  to  the  amount,  though  returned  subject,  no  fi.  fa.  for 
residue  can  issue  until  the  old  levy  be  disposed  of.  Davia'  use  v.  Bid- 
die,  500. 

Nor  can  a  fi.  fa.  for  residue  accompany  the  venditioni  for  that  pur- 
pose.    7  bid,  500. 

Quere.  After  what  lapse  of  time  can  execution  begun  be  continued 
without  sci.  fa.?     Ibid,  500. 

A  bill  may  be  dismissed,  generally^  with  costs,  after  a  decree  over- 
ruling a  demurrer  to  it.     Farmers'  Bank  v.  Oilpin  et  al.,  561. 

A  bill  may  be  dismissed  generally  as  to  all  the  defendants,  and  with 
costs,  after  a  pro  confesso  decree  as  to  some  of  the  defendants.  Ibid, 
561. 

PRINCIPAL  AND  SURETY. 

Equity  will  distinguish  between  principal  and  surety,  thoi]^h  the 
nature  of  the  security  be  such  as  to  make  them  all  principals  at  law. 
M'Dovoell  V.  Bank,  369. 

Surety  paying  the  debt  of  his  principal  stands  in  the  place  of  the 
creditor,  and  is  entitled  to  an  assignment  of  all  securities,  original  and 
collateral.     Ibid,  369. 

If  the  maker  oi  a  note  has  funds  in  bank  on  general  deposit  after  the 
note  falls  due,  the  bank  is  bound  to  apply  them  in  payment  of  the  note, 
or  the  indoraer  is  discharged.     Ibid,  369. 

Giving  time  to  the  drawer  discharges  the  indorser.     Ibid,  369. 

At  law  all  the  obligors  in  a  bond  are  principals,  the  defence  therefore 
of  a  discharge  of  the  surety  by  the  acts  of  the  creditor  towards  the  prin- 
cipal cannot  be  set  up  at  law.     Farmers'  Bank  v.  Horsey  et  al.,  514. 

PROBATE. 

A  probate  must  disclose  all  the  credits  within  the  plaintiff's  knowledge. 
Lolley  V.  Needham's  ex'r.,  86. 

It  is  not  suflicient  to  make  a  general  reference  to  the  defendant's 
books  for  credits.     Ibid,  86. 

A  probate  may  be  produced  in  any  stage  of  the  cause.  Beeson's  ex'r. 
V.  Beeson's  adm'r.,  106. 

PROMISSORY  NOTE. 

The  words  "  or  order  "  or  words  tantamount,  are  necessary  to  make  a 
note  negociable.    Femon  v.  Farmer's  admr.,  32. 

A  parol  promise  revives  a  debt  due  by  promissory  note  for  six  years. 
Duncan  v.  Newlin,  109. 

When  the  guarantor  of  a  note  is  entitled  to  notice  of  his  principal's 
default.     Brooks  v.  Morgan,  123-5. 

Insolvency  of  the  principal  excuses  the  notice.  Erwin  v.  Lambom, 
125. 

To  charge  a  party  as  indorser  there  must  be  an  actual  endorsement  in 
person  or  by  procuration.     Bank  v.  Houston,  225. 

A  collateral  agreement  to  be  bound  as  indorser  will  not  make  the 
party  liable  as  an  indorser.    Ibid,  225. 

If  the  holder  of  a  note  take  a  higher  security  from  the  drawer  it  dis- 
charges the  indorser.     Bank  v.  Simmons,  331. 

Giving  time  to  the  drawer  discharges  the  indorser.  M'Dowell  v.  Bank, 
369. 

Lunacy  may  be  set  up  against  a  note  at  least  as  between  the  original 
parties  or  the  first  indorsee.     Allen  d  Co.  v.  Babcock,  348. 

The  want  or  failure  of  consideration  may  be  given  in  evidence  as  be- 
tween the  original  parties  to  the  note.     Hartwell  v.  Mac  Beth,  363. 


INDEX.  595 

PROMISSORY  NOTE. 

The  payee  of  a  note  cannot  indorse  it  over  after  it  has  been  attached 
in  the  drawer's  hands.     Robinson  v.  Mitchell  and  Quinn,  365. 

REFERENCE. 

A  prospective  agreement  to  refer  all  matters  of  dispute  which  may 
hereafter  arise  will  not  oust  the  jurisdiction  of  the  courts.  Rondel  v. 
The  Ches.  and  Del.  Canal  Co.,  234. 

And  even  in  case  of  a  submission  of  existing  disputes  either  party 
may  revoke  the  submission,  though  he  would  be  liable  on  the  agreement 
to  refer.     Ibid,  234. 

Referees  may  try  the  grade  of  a  debt  against  a  decedent's  estate  and 
report  the  order  of  preference.     Elliott  v.  Brindley  et  al.,  364. 

REGISTER  OF  WILLS. 

Queref  Whether  the  register  of  wills  is  a  judge,  and  as  such  author- 
ized to  administer  oaths  generally?     Worknot  v.  Millen's  admr.,  139. 

REPLEVIN. 

Replevin  will  not  lie  by  the  part  owner  of  a  chattel  for  his  undivided 
share.     Prichard's  adm.  v.  Culver,  76. 

Replevin  will  not  lie  at  the  suit  of  a  master  to  recover  an  apprentice. 
Morris  v.  Cannon,  220. 

It  seems  that  replevin  will  not  lie  for  a  freeman.     Ibid,  220. 

RELEASE. 

A  release  of  any  part  of  a  rent  charge  is  a  release  of  the  whole. 
Bird  v.  Stilley  and  Rudolph,  339. 

SCIENTER. 

In  an  action  on  the  case  for  recommending  an  insolvent  person  as  fit 
to  be  trusted,  both  a  knowledge  of  the  insolvency  and  a  fraudulent  intent 
must  be  proved.     Fooks  v.  Waples,  131. 

SLAVES. 

The  issue  of  manumitted  slaves  born  after  the  manumission,  but  before 
the  period  of  its  taking  full  effect,  were  slaves  before  the  act  of  1810. 
Jones  v.  Woottin,  77. 

The  issue  follows  the  condition  of  the  mother.     Ibid,  77. 

STATE. 

The  question  of  the  jurisdiction  of  this  state  over  the  bay  and  River 
Delaware  considered.     Note  to  Emory  v.  Collings,  325. 

STATUTE  OF  LIMITATIONS. 

Constriiction  of  the  term  "  settlement  under  the  hand  of  the  party " 
in  the  act  of  1793.     Booth's  ex'r.  v.  Stockton's  ex'r.,  51,  209. 

What  mutual  and  running  accounts  are  not  barred.     Ibid,  51. 

A  law  enlarging  the  time  of  brin^ins  suits  does  not  impair  the  obli- 
gation of  the  contract.     Bishop  v.  Wilds'  admr.,  87. 

Queref    Would  a  law  diminishing  the  time?     Ibid,  87. 

A  parol  promise  revives  a  debt  due  by  promissory  note  for  six  years. 
Duncan  v.  Newlin,  109. 

A  promise  by  an  administrator  will  revive  a  debt  barred  by  the  statute. 
Bennington  v.  Parkin's  admr.,  128,  209. 

Infancy  must  be  specially  replied  to  a  plea  of  the  statute.     State  T. 
Stockley's  admr.,  134. 
7h 


.396  INDEX. 

STATUTE  OF  LIMITATIONS. 

The  acknowledgment  of  a  debt  barred  by  limitation  revives  the  old 
debt  and  does  not  create  a  new  obligation.     Newlin  v.  Duncan,  204. 

Payment  towards  or  any  recognition  of  a  debt  prevents  the  operation 
of  the  statute.     Ibid,  204. 

The  principle  of  that  act  is  a  presumption  of  payment  which  a  slight 
acknowledgment  may  rebut.     Ibid,  204. 

Eleven  years  can  never  raise  a  presumption  of  payment  from  lapae  of 
time.     Oreen  v.  Lockwood'a  admr.,  331. 

STOCK. 

A  by-law  of  a  book  giving  it  a  lien  on  stock  for  the  debts  of  the 
holder  is  valid.     M'Doiccll  v.  Bank,  27. 

A  purchaser  of  stock  need  only  look  to  the  title  of  his  vendor  on  the 
books  of  the  company,  and  is  not  affected  by  previous  irregularity  in  the 
transfers.     Turnpike  Co.  v.  Bush,  44. 

SLANDER. 

One  may  justify  the  repetition  of  slanderous,  words  if  he  merely  re- 
peat what  he  has  heard,  and  give  his  author  at  the  time.  Tatlow  v. 
Jaquett,  333. 

If  other  slanders  be  proved  to  shew  malice,  the  defendant  may  justify 
without  pleading,  as  to  them.    Ibid,  333. 

Words  are  not  actionable  in  themselves  unless  they  impute  a  legal 
crime.     Stewart  v.  Cleaver,  337. 

A  charge  of  perjury  is  actionable  without  a  colloquium  showing  that 
it  was  in  a  judicial  proceeding.     Waggstaff  v.  Ahston,  503. 

In  slander  the  defendant  cannot  on  the  general  issue  give  evidence  of 
facts  tending  to  prove  the  truth  of  the  charge.     Ibid,  503. 

TENANT. 

Tenant  cannot  dispute  his  landlord's  title.     Reed  v.  Todd,  138. 
It  is  for  the  court  to  say  when  a  tenancy  is  proved.     Ibid,  138. 

TOLLS. 

Tolls  on  the  Wilmington  and  Philadelphia  Turnpike  cannot  be  com- 
muted for  a  part  only  of  the  road.    Rambo  v.  Turnpike  Co.,  116. 

The  tolls  of  the  Chesapeake  and  Delaware  Canal  are  liable  to  attach- 
ment in  the  hands  of  the  masters  of  vessels  passing  through  the  canal. 
Randel  v.  Shoemaker,  garnishee,  566. 

TRESPASS. 

Injuries  to  cattle,  though  trespassing,  are  actionable.  Richardson  v. 
Carr,  142. 

Justification  for  entry  -upon  lands  iinder  an  order  of  court  must 
strictly  pursue  the  order.    Huey  v.  Hendrixen  et  al.,  145. 

One  tenant  in  common  cannot  maintain  trespass  against  his  co-tenant 
without,  &c.    il'Call  v.  Reybold,  146. 

In  trespass  the  locus  in  quo  must  be  proved  to  be  within  the  hundred 
laid.     Emory  v.  Collings,  325. 

Actual  possession  is  necessary  to  maintain  trespass.     Clark  v.  Hill,  335. 

An  action  of  trespass  before  a  justice  does  not  abate  by  the  defendant's 
death.    Washington's  ex'r.  v.  Richardson,  338. 

TROVER. 

Trover  will  lie  against  an  administrator  personally  for  a  conversion  by 
him,  though  the  property  came  to  him  -with  the  estate  of  the  intestate. 
Burton's  admr.  v.  Miller  et  al.,  7. 


INDEX.  697 


TROVER. 


Queref  Can  one  tenant  in  common  of  a  vessel  maintain  trover  against 
his  co-tenant  without,  &c.    Egbers  v.  Logan,  342. 

TRUST. 

Can  trust  money  be  followed  into  land  upon  evidence,  as  against  judg- 
ment creditors?     Roberts  et  al.  v.  Broom,  57. 

When  the  conveyance  is  to  the  trustee  without  noticing  the  trust,  the 
application  of  the  trust  fund  must  be  clearly  proved.    Ibid,  57. 

VARIANCE. 

Proof  of  facts  amounting  to  a  discharge  in  law  does  not  support  a  plea 
of  payment.     State  v.  Reading's  terre-tenants,  23,  331. 

Evidence  of  a  bond  to  Sarah  Eliza  R.  will  not  support  the  averment  of 
a  bond  to  Eliza  R.     Ibid,  23. 

Variance  between  a  contract  alleged  and  the  one  offered  is  fatal, 
whether  the  action  be  on  the  contract  or  in  tort  arising  out  of  it.  Randel 
V.  Wright,  .34. 

Distinction  between  the  allegation  of  an  instrument  by  its  tenor  and  in 
substance.    Ibid,  34. 

Variance  in  the  date  of  an  instrument  declared  on  is  fatal ;  the  date 
being  matter  of  substance.     Bank  v.  Simmons,  331. 

In  an  action  of  waste  plaintiff  declared  on  a  tenancy  in  common  and 
proved  a  co-parcenary,  held  fatal.     Waples  et  al.  v.  Waples,  474. 

WAGER. 

In  a  bet  on  a  horse  race  neither  party  can  recover  without  a  decision 
of  the  judges.     Jacobs  v.  Walton,  496. 

Before  a  decision  either  party  may  recover  back  his  stakes.     Ibid,  496. 

A   special   demand  must  be  made  of   the   stake-holder.     Ibid,   496. 

But  where  he  paid  over  the  stakes  without  a  decision  by  the  judges  and 
against  notice,  held  that  a  demand  was  unnecessary.     Ibid,  496. 

Quere.  Can  a  bet  on  a  race  in  another  State  be  recovered  on?  Ibid, 
496. 

A  bet  on  the  nomination  election  of  a  candidate  is  void.  Porter  v. 
Sawyer,  517. 

WAIVER. 

The  power  to  avoid  a  voidable  contract  may  be  waived.  Randel  v. 
The  Ches.  d  Del.  Canal  Co.,  233. 

Any  discretionary  power  may  be  waived.     Ibid,  233. 

And  thousrh  the  power  be  derived  by  deed  it  may  be  waived  by  parol. 
Ibid.  233. 

The  party  having  the  power  to  establish  a  forfeiture  or  avoid  a  con- 
tract must  do  it  within  a  reasonable  time,  and  in  a  lawful  manner,  or  it 
is  a  waiver.    Ibid.  234. 

Any  act  legally  inconsistent  with  the  exercise  of  the  power  will  amount 
to  a  waiver.     Ibid,  234. 

WARRANTY. 

In  an  action  on  the  warranty  of  a  horse,  the  warranty  must  be  proved 
to  have  been  made  to  defendant.     Sipple  v.  lireen,  16. 

In  an  action  on  the  warranty  of  a  vessel  at  the  suit  of  the  owner,  the 
master  is  not  a  competent  witness  to  prove  that  the  vessel  was  lost  from 
unsoundness.     Newbold  d  Craven  v.  Wilkins,  43. 

The  lineal  warranty  of  tenant  in  tail  in  possession  descending  with  as- 
sets of  equal  value  to  the  heir  in  tail  bars  the  heir  from  claiming  the 
lands  warranted.    Ford's  lessee  v.  Hays  d  Sutton,  48. 


598  INDEX. 

WARRANTY. 

When  the  guarantor  of  a  note  is  entitled  to  notice  of  his  principal's 
default.     Brooks  v.  Morgan,  123. 

Insolvency  of  the  principal  excuses  notice.    Ervfin  v.  Lamborn,  125. 

WAY. 

Prescriptive  right  of  way  may  be  presumed  from  twenty  years  enjoy- 
ment.    Hugging  v.  M'Oregor,  447. 

Right  of  way  from  necessity,  when.    Ibid,  447. 

WILL. 

What  degree  of  influence  will  vitiate  a  will.  Chandler  et  al.  v.  Ferris, 
454. 

If  in  drawing  out  a  will  from  instructions  they  be  materially  departed 
from,  proof  must  be  made  that  the  testator  was  informed  of  the  altera- 
tion.    Ibid,  454. 

Sound  and  disposing  mind  and  memory.    What  is  it?    Ibid,  454. 

WITNESS. 

In  an  action  on  the  warranty  of  a  vessel  at  the  suit  of  the  owner,  the 
master  is  not  a  competent  witness  to  prove  that  the  vessel  was  lost 
through  unsoundness  and  not  from  negligence.  Jfewbold  d  Craven  v. 
Wilkins,  43. 

A  witness  to  a  deed  who  has  proved  it  in  court  may  be  impeached, 
though  he  be  not  a  witness  in  the  cause.  Vandyke's  lessee  v.  Thompson, 
109. 

The  cashier  of  a  bank  is  a  competent  witness  to  prove  the  amount  of  a 
deposit  —  when.    Johnson  v.  Bank,  117. 

When  an  attorney  is  privileged  from  giving  testimony.     Ibid,  117. 

Surety  in  an  administration  bond  is  a  witness  where  there  is  not  a 
suggestion  of  devastavit.     Bennington  v.  Parkin's  adm'r.,  128. 

An  attorney  not  competent  to  contradict  his  own  entry.  Waples  v. 
Clarke's  adm'r.,  135. 

A  director  of  a  company,  not  being  a  stockholder  nor  a  party  of  record, 
is  a  competent  witness  for  the  company.     Randcl  v.  Canal  Company,  234. 

Deposition  written  out  by  the  witness  himself  admitted  under  peculiar 
circumstances.    Ibid,  234. 

The  oath  of  one  witness  with  corroborating  circumstances,  will  out- 
weigh an  answer  on  oath.    M'Dowell  v.  Bank,  369. 

Quere.  Will  not  the  oath  of  one  witness  \insupported  establish  a  fact 
against  the  answer  of  a  corporation.    Ibid,  369. 

A  party  defendant  in  chancery  may  be  examined  as  a  witness,  if  no 
decree  be  sought  against  him.     Ridgeway  rf  Newbold  v.  Newbold,  385. 

A  witness  having  an  equal  interest  in  either  event  is  competent. 
Bailey  v.  Capelle,  449. 

Consignor  competent  to  prove  property  in  consignee.     Ibid,  449. 

The  obligor  in  a  bond  given  on  an  usiirious  contract  is  a  competent 
witness  to  prove  the  usury  in  an  action  qui  tarn.  Banner  qui  tarn  v. 
Gregg,  523. 


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